DISCLAIMER The following is a staff memorandum or other working document prepared for the members of the Advisory Committee on Human Radiation Experiments. It should not be construed as representing the final conclusions of fact or interpretation of the issues. All staff memoranda are subject to revision based on further information and analysis. For conclusions and recommendations of the Advisory Committee, readers are advised to consult the Final Report to be published in 1995. MEMORANDUM TO: Members of the Advisory Committee on Human Radiation Experiments FROM: Allen Buchanan DATE: January 10, 1995 RE: Ethical Relativism and Retrospective Moral Judgment I. THE PROBLEM OF RETROSPECTIVE MORAL JUDGMENT AND ITS IMPORTANCE Contemplation of historical events, actions, and agents can evoke wonder, admiration, sympathy, or horror. Sometimes it stimulates moral judgment. We may praise or blame persons or institutions or organizations. We may also conclude that individuals were wronged, and that the wrongs they suffered call for redress. In spite of our tendency to make moral judgments about the past, some feel an uneasiness about retrospective moral judgments. We may ' be especially reluctant to cast moral blame on particular individuals in the past. Sometimes this reluctance to blame agents is accompanied by a willingness to judge the agents' actions as being morally wrong, and even to conclude that the rights of the individuals upon whom those actions were performed were violated. Yet it is not altogether clear that this combination of responses is coherent and defensible. How can we say that someone did something wrong, and in so doing violated someone else's rights, but deny that the person is blameworthy? If, in order to avoid blaming individuals we must deny that persons' rights were violated by actions we would now regard as rights-violating, it appears that we somehow devalue or deny the plight of those persons. At the bottom of uneasiness about retrospective moral judgment lie doubts about whether we can validly apply current moral standards to actions occurred when those standards were either not known or not widely accepted. The question of the scope and limits of retrospective moral judgment is not a mere theoretical puzzle for moral philosophers. It is an eminently practical question, since how we answer it has direct and profound implications for what we ought to do now. Most obviously, which position we adopt on the scope and limits of retrospective moral judgment will determine whether we should honor claims which persons now make for compensation for historical injustices allegedly perpetrated against themselves or their ancestors. Similarly, whether agents should be punished for actions they performed long ago will depend upon the scope and limits of retrospective moral judgment. More specifically, we must know 1 whether they are culpable for their actions and, if they are, whether there is any special circumstance due to the historical context in which they acted which should mitigate whatever punishment would be appropriate given their culpability. In addition, something even more fundamental is at stake in the debate over retrospective moral judgment: the possibility of moral progress. The idea of moral progress only makes sense if it is possible, not only to make moral judgments about the past, but to make them by appealing to some of the same moral standards that we apply to the present. For unless we can apply the same moral yardstick to the past and the present, we cannot meaningfully say either that there has been moral progress or that there has not. For example, unless some retrospective moral judgments are valid, we cannot say that the abolition of slavery is a case of moral progress. More specifically, unless we can say that slavery in the antebellum South was wrong, we cannot say that the abolition of slavery was a moral improvement. And unless we can say that the practice of slavery violated human rights, we cannot say that its abolition was a victory for the cause of human rights. II. THE CHARGE OF THE ADVISORY COMMITTEE ON HUMAN RADIATION EXPERIMENTATION: ETHICAL EVALUATION AND EVALUATION OF ETHICAL CRITERIA The radiation experiments conducted or sponsored by the U.S. government in the late 1940s, 1950s, 1960s, and early to mid-1970s, provide a concrete focus for the problem of retrospective moral judgment. The Advisory Committee on Human Radiation Experiments, which was created by President Clinton and began its work in April 1994, is charged with ethically evaluating the radiation experiments. The Advisory Committee is also explicitly charged with the prior task of determining "What ethics criteria should be used to evaluate [the] experiments?"[Executive Summary, Interim Report, p. iii] In other words, the Advisory Committee's role is not simply to evaluate, but to proceed reflectively by asking first what are the proper criteria for ethical evaluation. In order to know which criteria for ethical evaluation are proper, it is necessary for the Advisory Committee to take a position on the scope and limits of retrospective moral judgment. Apart from the fact that its official charge requires taking a position on retrospective moral judgment, the Committee's deliberations take place against a backdrop of public discussion in which questions about the scope and limits of retrospective moral judgment have already surfaced. On the one hand, revelations of the human radiation experiments have evoked moral condemnations of some of the actions involved, and have already led some to conclude that the rights of some experimental subjects were violated. On the other hand, in some quarters there has been a reluctance to make some or any moral assessments of these past events. 2 For example, an article in Science Trends describing the injection of plutonium into 18 nonconsenting men, women, and children during the Manhattan Project concludes that "Whether [this action]. . .can be equated with Nazi Wartime experiments is today considered moot." This last sentence expresses a marked, but not uncommon ambivalence about retrospective moral judgments. The statement implies we all know that the Nazi experiments were wrong, but at the same time suggests that it is inappropriate or pointless today to apply to the radiation experiments of a few decades ago the same standards by which we judge the Nazi experiments to be wrong. Yet, as we have already seen, a great deal depends upon whether we can make moral judgments about the radiation experiments and what sort of judgments we can make. In particular, if the radiation experiments were in some respects like the Nazi experiments--if they involved violations of individuals' rights--then compensation may be owed to those whose rights were violated. And if, in the case of the radiation experiments, as in the case of the Nazi experiments (at least until quite recently), there are identifiable and still living individuals who are culpable for those rights-violations, then it is appropriate to consider whether they ought to be held accountable and if so, in what way. As we analyze the question of retrospective moral judgment more deeply, we will find that the question is not whether any retrospective moral judgments are valid, but rather which sorts of retrospective moral judgments, under which circumstances, are valid. Therefore, in order to avoid the possibility of sweeping over-generalizations either that all retrospective moral judgments are valid, or none are it is necessary to sort out the various types of judgments that may be made about the past. They include these: 1. judgments about the wrongness of actions and policies ("U.S. policy toward Japanese-Americans during World War II was unjust" or "The internment of Japanese- Americans was wrong") 2. judgments about the moral quality of institutions ("The political system instituted by the Nationalist Party in South Africa in 1948 was unjust" or "Oxford University discriminated against women until well into the 20th Century") 3. judgments about violations of individuals' rights ("The U.S. government, as well as white private individuals, violated the rights of Native Americans by unjustly taking their lands") 4. judgments about the culpability of individual agents ("Dr. Mengele was culpable in the deaths of thousands of innocent people" or "The doctor who injected live cancer cells into patients without their knowledge at the Jewish 3 Chronic Diseases Hospital in New York wronged those patients and violated the most basic principles of medical ethics") 5. judgments of collective culpability ("The German medical profession was guilty of aiding and abetting Nazi genocide") 6. judgments about the entitlement of individuals or groups to compensation as a matter of justice, that is, for violations of their rights ("Holocaust survivors have a valid claim to compensation from the German government") 7. judgments about whether it is permissible or obligatory to punish individuals for wrongs committed in the past ("Dr. Jones was guilty of exploiting the vulnerability of mentally compromised patients by performing risky, non-therapeutic experiments on them and for this he should be punished, even though the experiment occurred 30 years ago") 8. judgments about the character of persons who perform certain actions ("Hitler was a vicious person with no respect for human life" or "Dr. Jones acted wrongly in this case, but he was not a bad or evil person") Although it will not be our focus here, there is yet another type of retrospective moral judgment that is relevant to the case of the radiation experiments, as well as other instances of experimentation on human subjects--one which, unlike the judgment that compensation is owed on the grounds that rights were violated--presupposes no wrongdoing: 9. judgments about the appropriateness of compensation on grounds of compassion, rather than of justice ("Even if their rights were not violated, out of compassion for their plight and gratitude for the sacrifices they made, the government ought to compensate volunteers who were injured in government-sponsored experiments") It is worth noting that some observers of the unfolding story of the radiation experiments have endorsed this ninth judgment, while at the same time expressing the belief that there would be something inappropriate about making the judgment that compensation is owed to experimental subjects on grounds of injustice. Yet both the judgment that compensation is proper on grounds of compassion and gratitude, and the judgment that it is owed to those whose rights were violated are moral judgments and are judgments made about the past. So, if the former are legitimate but the latter are not, it cannot be because retrospective moral judgments as such are problematic. To put the same point differently: If we can validly praise experimental subjects 4 in the past for their sacrifice, why cannot we blame experimenters in the past for wrongdoing? It may be true, of course, that in particular instances a judgment of type 9 (a judgment praising individuals in the past) would be valid while one of the other eight types would not, or vice versa. The question, though, is whether one can consistently say that negative retrospective moral judgments (judgments of culpability, etc.) can never be valid (that is, are in principle invalid), while at the same time maintaining that positive retrospective judgments are in principle valid or generally unproblematic. While keeping in mind this point about consistency, we shall concentrate on the first eight types of retrospective moral judgments, since it appears that the main controversy, at least so far as the radiation experiments are concerned, revolves around them, not around judgments of type 9. III. OPTIONS FOR RETROSPECTIVE MORAL JUDGMENT: THE CASE OF THE HUMAN RADIATION EXPERIMENTS There are a number of possible positions that might be taken concerning which of the aforementioned types of moral judgment can be validly made about the past. We can begin with the most obvious alternatives. Each succeeding position in the list below allows a broader range of types of moral judgments about the past. The first alternative on the list is the limiting case: the complete suspension of retrospective moral judgments of all sorts. The last alternative listed lies at the opposite end of the spectrum: It makes no concessions to historical context, maintaining that the moral standards we now espouse be applied to the past. After setting out the options for retrospective moral judgment, we will explore their implications for the evaluation of the human radiation experiments. A. Extreme Historical Ethical Relativism All eight types of moral judgment are strictly historically relative. If an action (or institution, or policy) was ethically permissible according to the dominant ethical view at the time, then it is not subject to any moral censure by us. We cannot say that the action, at the time it was performed, was morally wrong. Similarly, if an action was not a rights-violation according to the dominant ethical view of the time, then it was not a rights-violation, even if we would correctly regard the same action, were it performed today, as a rights-violation. Moral culpability is also strictly historically relative: So long as the dominant ethical view at the time did not forbid their actions, it is incorrect to blame agents acting in the past, even if their behavior was identical to behavior which, if performed by one of our contemporaries would warrant the most extreme condemnation. The appropriateness of punishment or penalties is also strictly historically relative: If a past agent's action is consonant with the dominant ethical view of his time, then he should not be punished or penalized, even if it would be correct 5 to punish or penalize a person who performed the same actions today. Finally, judgments of character are also strictly historically relative: So long as his action was permitted by the dominant ethical view of his time, a past agent's action is no basis for judging him to be of bad moral character, even if we would correctly regard one of our contemporaries who performed the same action, as an evil person. B. Moderate Historical Ethical Relativism--Separating the Wrongness of Actions From the Culpability of Agents This second position consists of four elements: (1) It is correct to judge actions in the past as morally wrong if they violate what we now believe to be sound moral standards, even if those standards were not present, not known or not dominant at that time. However, (2) it is inappropriate to judge the agents who performed them to be culpable for these actions, if the dominant ethical view of that period did not forbid the action. And (3) where judgments of agent-culpability are invalid, so are judgments stating that the agents in question ought to be or may be punished as well as judgments about defects in their moral character. (It is correct to punish an agent for his actions only if he is culpable, but since an agent cannot be culpable if his action was not forbidden by the dominant ethical view at the time he acted, it is wrong to say that an agent ought to be punished for performing an action if it was not contrary to the dominant ethical view at the time). Similarly, (4) we cannot make an inference that a person is of bad moral character unless we can say that he acted culpably, but we cannot say that he acted culpably if his action was not forbidden by the dominant ethical view at the time he acted. C. Moderate Historical Ethical Universalism: Judgments of Culpability of Agents in the Past Are Valid, But Historical Differences Mitigate the Implications of Culpability for Punishment and for Judgments of Character Even when it is correct to judge past actions wrong, correct to judge that persons' rights were violated, correct to conclude that redress or compensation is owed to those whose rights were violated by those actions, and correct to judge that the agents who performed them to be culpable, it would be wrong to punish the individual who acted wrongly if his action was not regarded as warranting punishment at the time he acted, even if punishment would be warranted if one of our contemporaries was similarly culpable. Similarly, according to this third view (Moderate Historical Ethical Universalism), an appreciation of the historical context in which an agent acted may make it appropriate to be more lenient in our assessment of his character than we would if one of our contemporaries were culpable for the same action. Thus, for example, if a person living today in our society and one living in the early Nineteenth Century in a society in which slavery was legitimate and the law conferred second-class status on women acted in an egregiously discriminatory manner toward Blacks or women, we might conclude that they both performed acts for which they were culpable, but we might not judge the character of the latter as harshly as that of the former. 6 The reason for distinguishing between judgments of culpability and judgments about the appropriateness of punishment is this: Whether it is warranted to punish an agent for actions for which he is culpable depends upon a number of complex factors, including the nature of the legal system in which he operated. More specifically, it makes all the difference whether the legal system at the time designated the action in question as one which was punishable. Whether the action was punishable at the time matters, because there is a strong moral presumption against retrospective punishment-- punishment inflicted for actions that were not recognized to be punishable offenses at the time they were committed. The intuitive basis of this presumption is a simple but powerful idea: Punishment is such a serious matter, both materially and symbolically, that respect for individuals as choosing beings, as well as the need to minimize the danger that government will use the law as an instrument of terror and oppression, requires that individuals be put on notice in advance as to what they may and may not do without fear of punishment. Hence even if, on moral grounds, we conclude that an agent's actions in the past were morally blameworthy, it does not follow that he should be punished for those acts. And clearly actions can be morally blameworthy even if they were not punishable offenses at the time they were committed. According to Moderate Historical Ethical Relativism, we should also distinguish between judgments about culpability, on the one hand, and judgments about character, on the other, because the cultural milieu in which a person acts is relevant to the inferences we should draw about the person's character from his or her acts. In a cultural milieu in which forms of discrimination are universally or widely accepted, it may be possible to engage in wrongful conduct, and to be blameworthy for particular acts, without being a person of bad moral character. This would be the case, for example, if even conscientious and otherwise virtuous persons in a particular cultural milieu were simply unaware of the immorality of their acts due to pervasive and deep distortions in the moral belief structure of their community. Moderate Ethical Historical Ethical Relativism (Position B) and Moderate Historical Ethical Universalism (Position C), then, have this in common: They both recognize the validity of judgments concerning the rightness or wrongness of actions in the past by reference to what we now regard as sound moral standards. They differ, however, on the question of whether retrospective judgments about culpability are valid. Moderate Historical Ethical Relativism (Position C) denies the validity of judgments of the culpability of agents if they acted in ways not forbidden by the dominant ethical view at the time, while Moderate Ethical Historical Universalism (Position D) holds that we can validly judge past agents to be culpable for their actions even if those actions were not forbidden by the dominant ethical view at the time. These two positions agree, however, that judgments about liability to punishment and about character can only be made from the perspective of the dominant ethical view at the time the actions were performed. 7 D. Extreme Ethical Universalism All types of moral judgments may be applied retrospectively. If we would correctly judge an action to be wrong now, then the same action if performed in the past was also wrong. If an action if performed now would violate rights, then the same action performed in the past violated rights. If a person who is treated in a certain way now would be entitled to compensation or redress (for a violation of his rights), then a person in the past who was treated similarly would have a valid claim for compensation or redress. If a person who performed an action now would be culpable, then an agent in the past who performed the same action was culpable. If a person who now commits a violation of someone's rights deserves a punishment or penalty, then a past agent who perpetrated a similar rights-violation deserved (or, if he is still living, deserves) the same punishment or penalty. If certain behavior indicates that the person whose behavior it is has a bad moral character, then the same behavior performed by an agent in the past has the same implication for his character. It is crucial to understand that these four positions (A-D) are articulated here simply to make clear the possible stances one might take on how broad or restricted is the scope of retrospective moral judgment. Each of the four views takes a position on what types of retrospective judgment it is possible to make--that is, which types of judgments about the past are (in principle) valid. Whether or not a particular judgment is actually true or justified will depend, of course, upon what the facts are in a particular case and upon what facts we now know about the case. Thus, for example, a person who subscribes to Moderate Historical Ethical Relativism believes that there can be justified judgments about the culpability of individual agents in the past. But, from this it does not follow that he believes that every judgment of individual culpability that might be made or is made about past agents is justified. Whether or not a judgment of individual culpability is in fact valid (i.e., is justified) will depend upon what we know about the agent, his motives, etc. In some cases, we will simply not have sufficient information about what happened in the past to be able to make a valid judgment that an agent was culpable (though we might have sufficient information to be able to judge validly that a wrong was done). For instance, one may hold that there is nothing incoherent or in principle inappropriate about judging that an official in the Department of Defense who authorized certain experiments upon human subjects was culpable for failing to take reasonable steps to see that the standards for conducting research which he himself promulgated were complied with. [note quoting Wilson memorandum] Yet we might quite correctly conclude that such a judgment of individual culpability, in a particular case, would be unjustified because of gaps in the historical record which make it unclear whether the official in question did take reasonable steps. To refrain from making judgments simply because one recognizes that there are insufficient facts to base them on--while acknowledging that if the facts were available, then the judgment could be validly made--is not to embrace any sort of relativist position at all. 8 IV. TEMPORAL DISTANCE IN ITSELF MAKES NO MORAL DIFFERENCE (HISTORICAL ETHICAL RELATIVISM REDUCES TO CULTURAL ETHICAL RELATIVISM) It is important to emphasize that there really is no distinct problem about retrospective moral judgment as such. There is simply no conceivable reason why the mere passage of time should invalidate moral judgments of any sort. The fact that it has now been almost 50 years since Hitler attempted to exterminate the Jews in no way diminishes the wrongness of his actions, nor his culpability for them, nor the fact that millions of persons most basic rights were violated, nor that were he still alive he ought to be punished for what he did, nor the fact that Hitler was a morally despicable human being. The validity of these moral judgments will not be affected by the passing of another fifty years, nor a hundred, nor a thousand years. If there is some reason for withholding or hedging retrospective moral judgments, then, it must lie elsewhere than in mere temporal distance. It must be something about the cultural or social context in which the past actions occurred. What could this be? The position known as Extreme Cultural Ethical Relativism does provide an answer to this question--though as we will see, not a satisfying one. According to this position, the validity of all moral judgments regardless of the temporal location of their subjects, are culture-relative. There are no cross-culturally valid moral judgments. Extreme Cultural Ethical Relativism entails, then, that retrospective moral judgments are invalid if they are applied across cultural boundaries. If the culture of a past society (or another contemporary culture) differs from our own, the our moral judgments are not valid when applied to the actions, institutions, agents, or characters of individuals within that culture. The idea is that moral judgments across cultural boundaries are invalid because moral judgments can only be justified by reference to a set of shared values, and shared values are only found within a particular culture. One culture differs from another in virtue of lacking the relevant values contained in the other culture, namely those that support the moral judgments in question. Understood in this way, Extreme Cultural Ethical Relativism does explain why some retrospective moral judgments are invalid, namely, where the past society about whom the judgments are made lacked the values that, in our culture, support our judgments. As we shall see, there is a grain of truth in Extreme Cultural Ethical Relativism, and this grain of truth does imply some limitations on some sorts of retrospective moral judgments, in certain circumstances. Nevertheless, it is vital to appreciate that this way of explaining the notion that there are restrictions on the validity of retrospective moral judgments comes at an exorbitant price: namely, the denial that there is such a thing as human rights. Human rights, by definition, are rights possessed by all human beings as such, simply by virtue of their humanity (or, perhaps, personhood), regardless of differences in their cultures and regardless of when they live. So, if there are any human rights 9 at all, Extreme Cultural Ethical Relativism is false. And if Extreme Cultural Ethical Relativism is false, then the mere fact that a past culture included values that are different from those of our present culture does not show that our moral judgments about what went on in that past culture. So, if there is a basis for the notion that at least some types of retrospective moral judgments are sometimes invalid, it must be found elsewhere than in the doctrine of Extreme Cultural Ethical Relativism--unless we are prepared, not only to deny that some things that are said to be human rights are human rights, but that there are no human rights. Because it entails the denial that there are any human rights, embracing Extreme Cultural Ethical Relativism not only invalidates retrospective moral judgments that span cultures, it also requires us to say that some of the most basic moral judgments we make about our own contemporaries are invalid. For example, if we embrace Extreme Cultural Ethical Relativism, we are barred from saying, not only that agents in the past such as Hitler violated human rights, but also that there are human rights violations occurring anywhere in the world today. We could not condemn any agents, in the past or recognize the actions in question as wrong. Nor could we say anyone in the world today is a victim of human rights abuses, nor that anyone is entitled to redress or compensation for having his or her human rights violated. No attempt will be made here to defend the belief that there are human rights. [For a general defense of the claim that there are human rights, see James Nickel, Understanding Human Rights] No effort will be made to mount an explicit refutation of Extreme Cultural Ethical Relativism. Instead, we will simply proceed on the relatively uncontroversial assumption that there are human rights and that the position worth examining concerning retrospective moral judgments is based on something other than Extreme Ethical Cultural Relativism. The question, then, is whether there is something other than mere temporal distance and mere cultural difference that poses an obstacle to the validity of some sorts of retrospective moral judgments, under some circumstances. V. EXCUSES AND MITIGATING FACTORS: NONCULPABLE FACTUAL AND MORAL IGNORANCE The grain of truth in the claim that cultural differences can invalidate moral judgments, and the basis for doubting the validity of some retrospective moral judgments is this: (1) Sometimes cultural factors can make individuals unable to discern what they ought to do, or can mitigate the blame we should place on those individuals for failing to do what they should have done, and (2) in some cases, these factors were at work in the past but no longer exist in the present. Now there are at least two ways in which the limitations of a person's culture can impair his ability to do what he ought to do. First, morally relevant factual information may simply not be 10 available in the individual's culture. Second, the individual may, like other members of the culture, be morally ignorant--he may, because of features of his deeply enculturated beliefs and conceptual framework, be unable to discern what his duty is because he is unable to make certain moral distinctions or to recognize certain individuals as having rights. To illustrate the view that culturally-induced factual ignorance can invalidate certain sorts of moral judgments, consider these examples. First, a medieval priest might violate one of his flocks's right not to be tortured or battered because he believes, as virtually everyone in his culture does, that the person's well-being will be restored only if the demons possessing him are driven out by the infliction of severe pain. Or, to take an example closer to our concerns here, a scientist in the 1940s who was sincerely trying to observe the very standards for ethical experimentation that we now endorse may have performed an experiment that should not have been performed because he erroneously believed, as did most of his contemporaries in the scientific community of that day, that the experiment, though non-therapeutic, involved minimal risk when in fact the risk was very great. In either of these cases we might reasonably conclude that although wrong actions were performed, those who performed the actions were not morally blameworthy in the same way or to the same extent that they would have been had they performed the same actions while not being subject to culturally-induced ignorance of the facts. If we also conclude not only that the actions were wrong, but that those who were harmed by them were wronged--suffered violations of their rights--then we are faced with a choice as to our moral judgment concerning the agents who inflicted the harm that constituted the wronging. We can either (1) deny that the agents failed to do their duty, while maintaining that nonetheless they did something that violated someone's rights; or we can (2) say that they failed to do their duty but that culturally-induced ignorance mitigates their culpability for not having done their duty. The drawback to the first way of describing the situations is that it pries apart what is ordinarily thought to be the congruence of rights and duties. Rights are usually thought of as having two aspects: an entitlement on the part of the right-holder to be treated in certain ways and a duty incumbent on others to treat the right-holder in those ways (or to help bear the costs of a collective arrangement that ensures that the individual be treated in those ways). [Note: this applies to claim rights--which are what is at issue in this discussion] According to the usual way of understanding what rights are, then, the first option must be rejected. If we appeal to culturally-induced factual ignorance as undercutting the individual's duty, then we must also concede that there was no violation of a right. At most we can say that something wrong was done. We cannot say that anyone was wronged. Nor can we say that anyone was culpable for having violated or failed to fulfill a duty. 11 Notice that this characterization of the culturally-induced factual ignorance cases does not collapse into Extreme Ethical Relativism of any sort. It acknowledges that the actions were wrong, but it does not regard the agents as culpable. However, it precludes us from saying that being battered and tortured, in a society that believed in the necessity of violent exorcism, was a violation of human rights. And hence, since human rights are rights that accrue to human beings regardless of what their culture is like, it commits us to saying that there is no human right to be free of being battered and tortured. Likewise, the first characterization of the risky experiment case commits us to saying that the individual's rights were not violated, even though we believe that they would be violated if the very same risk were present and the experimenter had not underestimated it. This seems odd, because whether or not the individual's rights were violated would seem to depend upon how she was treated--more specifically upon whether she was treated as she should have been. And this in turn seems to depend upon what the proper rules are for experimentation on human subjects, not upon whether someone engaged in experimentation happens to be well-informed about the degree of risk involved. Accordingly, even though it may seem inappropriate to blame the agent, it is surely unjust not to acknowledge that the person who has been tortured or the person who has been subjected to a very risky experiment without prospect of therapeutic benefit has not been wronged. The second way of understanding the two cases is based on the idea that one can have a duty, but fail to do it because one's culturally-induced beliefs prevented one from seeing what one's duty was. This amounts to the view that in cases such as the two described above there can be a failure to do one's duty which is in a significant sense a nonculpable failure. The second characterization of the cases, then, enables us to preserve the correlativity of rights and duties, and to say that persons' rights were violated, but at the cost of saying--what may seem odd to some--that someone did not do his duty, but was not culpable (or blameworthy) for not having done it. In other words, the second characterization employs the idea of a nonculpable failure to fulfill a duty. What both characterizations [(1) and (2)] have in common is the view that culturally-induced factual ignorance can exculpate agents who perform what we regard as wrong actions. (Whether the actions were performed in the past or the present is entirely irrelevant--what matters is whether the wrong action resulted from culturally-induced factual ignorance that prevented the agent from discerning her duty). However, there is this crucial difference. The first characterization acknowledges the exculpating role of culturally-induced ignorance only by undercutting the individuals' claims to having had their rights violated--and hence also undercuts any claims to compensation or redress as a response to the violation of rights. The second alternative allows us to separate the wrongness of the act from the agent and to exculpate the agent without undercutting the judgment that the individuals' rights were violated and hence without undercutting claims for compensation or redress on grounds of justice. One additional feature of the second alternative characterization worth emphasizing is this: Once we acknowledge the possibility of 12 nonculpable failures to perform duties, we can consider the possibility that though the person whose right was violated is owed compensation, it should not be the person who failed to perform the duty who should bear all or even part of the burden of compensating the person whose rights were violated. In other words, if the person is not culpable for his failure to perform his duty, then the fact that he is not culpable may remove or diminish what would otherwise be his liability for compensating the victim of the rights-violation. It might be more appropriate, for example, for society as a whole to provide compensation. Of the two alternatives, the second alternative seems superior for three reasons. First, the idea of nonculpable failures to perform duties is neither novel nor incoherent. It is recognized in the law, for example, when it is said that though an individual had a duty to yield the right-of-way, his failure to do so was nonculpable because he suffered a stroke and lost consciousness as he was entering the intersection. Second, if nonculpable failures to perform duties are admitted, we avoid a serious problem which the first alternative faces--the abandonment of the ordinary understanding of a right, as including correlative duties. Third, the second alternative avoids the other disturbing implication of the first: We are not forced to deny that the individuals were treated in ways they were entitled not to be treated; we can acknowledge that they were wronged, while still concluding that the agents were not culpable for doing what violated their rights. If, as seems appropriate, we accept the second characterization of the culturally-induced factual ignorance cases, it appears that we can give appropriate weight to the notion the distinctive features of an earlier era can sometimes exculpate agents, while avoiding a collapse into any version of Extreme Ethical Cultural Relativism and without denying that it makes sense to attribute rights to individuals in the past. We can deny that the agents in such cases are culpable, but maintain that our judgments that the actions were wrong and that those upon whom they were performed were wronged. Such a conclusion would be warranted, however, only if we can make another assumption: that the culturally-induced ignorance that resulted in actions that violated individuals' rights was non-culpable ignorance. The necessity for this qualification becomes clear if we consider cases of factual ignorance that are not culturally-induced. Suppose, for example, that the experimenter in our second example had underestimated the risk to the subject, not as a result of the application of factual beliefs that were widely accepted in the scientific community at the time, but as a result of his own failure to read the relevant literature which was readily available and which informed the opinion of the scientific community as a whole at the time. The fact that he committed a wrong action as a result of factual ignorance in no way exculpates him if his ignorance itself is culpable. Thus we must consider the possibility that culturally-induced ignorance, like other ignorance, may in some instances be culpable ignorance. So far we have only considered the implications of culturally-induced factual ignorance for retrospective moral judgment. It is equally, if not more important, to consider the 13 possibility of culturally-induced moral ignorance--the failure to make relevant moral distinctions or to recognize the moral status of certain individuals, as a result of having culturally-induced beliefs or conceptual frameworks. In some cases, the dominant culture may instill a moral ignorance so profound that we may speak of cultural moral blindness. We can perhaps imagine, for instance, a society in which the processes of enculturation fail to teach most or all individuals that it is wrong to exploit other persons, or that it is wrong to kill others in response to trivial verbal insults, or that it is wrong just to kill a person for sport. Such cultures may have existed, though it is far from clear that they have actually existed, at least for extended periods of time. In many societies, of course, persons learn that these acts are wrong, but nonetheless sometimes perform them anyway. But this is not cultural moral blindness. Rather, it is simply the failure to do what one knows is wrong and what one's cultural beliefs, when consistently and impartially applied to particular circumstances, recognize to be wrong. It is much easier to imagine a more limited sort of cultural moral blindness--and one of which, sadly, history provides a number of examples. In some societies, the dominant culture may recognize that it is wrong to exploit persons, or to kill persons wantonly or for trivial reasons, but fail to recognize certain individuals as being persons, and hence as bearers of the rights that persons have. At least some of those committed to the ideology of slavery in the Antebellum American South may have been morally blind in just this way and their culture may have induced this moral blindness. Because of deeply ingrained cultural beliefs, they did not recognize Blacks as being persons. And because they did not, they did not see Black slavery as violating the rights of persons. Even if this much is admitted, however, two questions must be carefully distinguished before we draw any conclusions about limitations on retrospective moral judgments concerning slavery. First, even if it was true that some advocates of slavery did not recognize Blacks as persons, is it also true that they could not and should not have so recognized them? In other words, was their moral blindness remediable, and were they culpable for not remedying it? Whether or not a person's culturally-induced moral blindness is something for which he is culpable depends chiefly upon whether the individual had access to corrective beliefs and whether, if so, he failed to avail himself of them. In cultures that are extremely closed and repressive, the beliefs and forms of moral argumentation needed to correct culturally-induced moral blindness may not be available. Thus, if the Third Reich had lasted a thousand years, as Hitler proclaimed it would, or even another generation, it might have become virtually impossible for most individuals growing up in that twisted society to be capable of seriously entertaining the beliefs and principles needed to remedy the Nazi's failure to regard Jews as persons. It is very doubtful, however, that the culture of the antebellum South was so closed and repressive as to eliminate opportunities for 14 repressive as to eliminate opportunities for challenging the truth of the belief in the inferiority of Blacks and hence to prec lude the possibility of remedying this culturally-induced blindness. There were, in fact vigorous public debates about the morality of slavery and antislavery tracts circulated throughout the South. Clearly it would be false to say that in contemporary American society, the fact that sexist beliefs are culturally-induced shows that individuals are not responsible for changing their beliefs. At present, the culture of sexism is not so thorough and impenetrable to criticism that it is wrong to hold sexists responsible for their discriminatory actions. If a person stubbornly clings to his belief that women are inferior by willfully disregarding evidence to the contrary and by turning a deaf ear to those who attempt to disabuse him of his errors, then he is blameworthy for the bad treatment of women that is the result of his beliefs in their inferiority. Even if he is psychologically incapable of treating women as equals, so long as he holds those beliefs, he is still culpable for his discriminatory behavior, if he could have and should have changed his beliefs. While it is certainly true that there are strong elements of sexism in contemporary American culture that encourage discrimination against women, it does not follow from this that growing up in our culture excuses discriminatory behavior or makes it inappropriate to blame individual for it. Cultural attitudes toward women in our society do not form a seamless web and they are not impermeable to forces that challenge them. Residual and still potent sexist elements exist alongside a growing public acknowledgement of the equality of women and men. As egalitarian attitudes and beliefs become more pervasive and as opportunities for subjecting sexist beliefs to criticism increase, it becomes less and less plausible to excuse sexist behavior on the grounds that it is culturally-induced. So the fact that moral ignorance is culturally-induced does not entail that it is nonculpable; nor does it render one blameless for the actions that result from that ignorance. What matters is not whether the erroneous belief that constitutes moral blindness was caused by the individual's culture; what matters is whether he can be held responsible for maintaining the belief. Where opportunities for curing one's culturally-induced blindness exist, one may rightly be held responsible for it and for the actions that issue from it. Persons who maintain their culturally-induced moral ignorance in the face of opportunities for correcting it typically do so by practicing the vices of self-deception--partiality to one's own opinions and interests, a willful rejection of facts that one finds inconvenient or disturbing, an inflated sense of one's own self-worth, and a lack of sensitivity to the predicament of others. Only if a person could not reasonably be expected to remedy his culturally-induced moral blindness, due to the lack of opportunities for criticism and corrective beliefs, would culturally-induced moral blindness exculpate his actions. But even then, as in the case of nonculpable culturally-induced factual ignorance, this would do nothing to show that his actions were not wrong, nor that they did not violate others' rights, nor that there was no legitimate basis for claims to redress or compensation. To summarize: Nonculpable culturally-induced moral blindness invalidates only judgments of agent-culpability. It does not wipe the moral slate clean of all other types of moral judgments. 15 VI. THE SIGNIFICANCE OF CULTURAL CONTEXT FOR JUDGMENTS ABOUT THE MAGNITUDE OF CULPABILITY, ABOUT PUNISHMENT, AND ABOUT CHARACTER As the example of sexism in contemporary American society suggests, during periods of cultural change there may be a blurring of the line between nonculpable and culpable culturally-induced moral ignorance. It seems appropriate to reflect our awareness of the process of cultural change by being less blaming of individuals who engaged in sexist behavior in a decade ago than of those who do so today, without fully exculpating the former. In other words, we may recognize that agents in the past are blameworthy for violating others' rights (as a result of culturally-induced which they should not have maintained) and yet recognize that their culpability is not of the magnitude of the culpability of a person who performed the same actions today. Similarly, we may judge that agents in the past were culpable for certain actions, yet acknowledge that we should judge their characters less harshly than we would those of our contemporaries, if the latter committed the same wrongs. For example, we would be more scathing in our condemnation of a person in our society in 1994 who held another as a slave than we would of a person who grew up in the antebellum South--even though we would hold both culpable for violating human rights. While we would most likely regard the former as an extraordinarily evil person, we might conclude that the latter, in spite of his grave moral defect regarding the status of Blacks, was not really evil, or at least not nearly so thoroughly despicable. Strong and pervasive cultural support for wrongdoing, then, can lead us to distinguish degrees or magnitudes of culpability and can mitigate negative assessments of character, without invalidating judgments of culpability altogether. For the same reasons, a sensitive appreciation of the cultural context of past events may let us refrain from judging that agents acting in the past ought to be punished, even in cases in which they failed to do their duty and violated the rights of others. We might conclude, for example, that those who performed the actions that violated others' rights were so strongly supported in their actions by powerful and pervasive cultural forces that society as a whole, rather than the particular individuals themselves, ought to bear the costs of compensating those whose rights were violated, and that it would be unjust to visit punishment on them. If the actions which we would now be warranted in punishing were at that earlier time not offenses according to the legal system of the day, then the presumption against retrospective punishment adds further weight to the conclusion that a valid judgment of culpability, in such a case, does not entail that punishment is appropriate. VII. RETROSPECTIVE MORAL JUDGMENT AND DIFFERENCES IN THE APPLICABILITY OF EXCEPTIONS TO VALID MORAL PRINCIPLES There is another, quite different source of the reluctance to pass moral judgment on persons existing in the past. Again, this 16 justification for suspending moral judgment has nothing to do with temporal remoteness. It is simply the idea that valid moral principles often have "exception clauses" and that whether or not the exception clauses are applicable may depend upon the historical context. Thus, for example, we may believe that it is permissible to do certain things in the name of national security in wartime, or during some other dire emergency, that would otherwise be impermissible. Since circumstances change over time, the conditions referred to in the exception-clause may have existed earlier but may no longer exist. Hence, without any concession to the Extreme Historical Ethical Relativist view (Position A above), or to any version of Ethical Cultural Relativism for that matter, we may sometimes correctly conclude that what would be morally impermissible now, was permissible at some earlier time. This source of reluctance to make retrospective moral judgments gains force if we also believe that, due to the cultural milieu of an earlier period, conscientious agents at the time might have been very likely to make unwitting mistakes in judging whether the exceptional conditions were in fact present. For example, we may suspect that at the most intense period of the Cold War, when a nuclear "exchange" between the Soviet Union and the United States was thought to be a very serious possibility, even reasonable and conscientious people may have been likely to conclude that the situation fit the description of a dire emergency and hence that some actions were permissible that would not otherwise be. It is also important here to distinguish between judgments about whether wrong actions were performed and whether rights were violated, on the one hand, and whether those who performed the actions or violated the rights were culpable or fully culpable, on the other. We might, for example, say that the pervasive anxieties of the Cold War led decent people to perform wrong actions and in some cases even to violate individuals rights. Yet we might temper or even suspend judgments that these individual were morally culpable or that they were of vicious character. In some instances, however, we might conclude, after a careful review of the historical facts, that some individuals not only did the wrong thing, as a result of their fears of nuclear war or of communist take-overs, but that even within the cultural milieu of their era they wrongly abused the exceptions built into valid moral principles. Again the point is this: From the fact that in some cases there may be insufficient factual information about the past to know whether certain judgments about culpability would be valid, it does not follow that judgments of past culpability as such are invalid, or that we cannot validly make such judgments in other cases in which the relevant facts are available. It all depends upon what facts we can recover. 17 VIII. RETROSPECTIVE JUDGMENT AND THE EVOLUTION OF MORAL STANDARDS The fact that moral standards evolve complicates the making of retrospective moral judgments considerably. The evolution of the requirement of informed consent is both an excellent example of the general problem and directly relevant to the moral evaluation of the human radiation experiments. Acceptance of the simple idea that medical treatment requires the consent of the patient (at least in the case of competent adults) appears to have preceded by a considerable interval the more complex notion that informed consent is required. [cite Faden and Beauchamp, etc.]. Furthermore, the notion of informed consent itself has undergone a process of refinement and development, through common law rulings, through analyses and explanations of these rulings in the scholarly legal literature, through philosophical treatments of the key concepts emerging from legal analyses, and through guidelines advanced in reports by government and professional bodies. [cite National Commission, President's Commission, etc.] It is probably fair to say, as a rough generalization, that the dominant current understanding of informed consent is both more sophisticated and more demanding than both the preceding requirement of consent and earlier interpretations of what constitutes informed consent. If this generalization about the development of the requirement of informed consent is even roughly accurate, then a question arises concerning retrospective moral judgments: Is it appropriate to judge past actions and agents by the current standard of informed consent? Or should such judgments take into consideration the fact that there has been considerable development of the concept over time? As we shall see later, the moral evaluation of at least some of the most questionable radiation experiments turns out not to depend upon how we answer these questions. For as we shall see, even if it is true that the requirement of informed consent, or what might be called the developed requirement of informed consent, is of more recent provenance than most or all of the radiation experiments, a case can be made that a requirement of consent was widely acknowledged at the time of the first of these experiments. However, even if it could be argued that the bare requirement of consent--as opposed to informed consent--was not part of the dominant ethical view (either of the general public or the medical profession) at the time of the earliest radiation experiments, there were other moral standards in place at the time that can serve as a basis for evaluation. Most important among these, as we shall argue later, is the Hippocratic prohibition against physicians harming their patients, where this is understood to rule out subjecting patients to harms or significant risk of harm without the prospect of therapeutic benefit. Therefore, even if we conclude, as seems reasonable, that it would be overly demanding to hold earlier researchers to the full rigor of the current understanding of the requirement of informed consent, they may still be blameworthy if they did not obtain consent at all, and they may be morally criticizable on other moral grounds as well. 18 IX. HUMAN RIGHTS VIOLATIONS, RIGHTS VIOLATIONS, AND OTHER MORAL WRONGS Not all wrong actions are wrongings of persons--that is, violations of persons' rights--and not all violations of rights are violations of human rights. When a person's right is violated, he has been treated in a way that he is entitled not to be treated. In other words, a person whose right has been violated has a morally valid grievance. In that sense the one whose right has been violated has a special moral standing with regard to the action that constitutes the rights violation: It is not just that he, like any person, can truthfully say that a wrong action has occurred; rather, he can truthfully say that he has been wronged and that because he has been wronged he deserves special consideration as a being who has received, as it were, a moral injury. Part of what is distinctive about the language of moral rights, in other words, is that it focuses sharply on persons--those who are the bearers of the rights--and the claim that a person's right has been violated ties the wrong action to that person, signalling that a moral injury has been done to that person. Not every thing that is wrong is a wronging, however. Actions may be morally wrong without being cases in which a person is wronged, a right violated. For example, an official might misuse public funds or falsify accounts or experimental records without violating any particular person's rights. Generally speaking, at least in Western cultures, wrongings, that is, those wrongs that are violations of persons' rights, are considered to be among the most serious wrongs, at least where the rights in question are human rights. That this should be so is not difficult to understand, given, as we have already seen, that human rights are rights we have simply by virtue of having certain morally important characteristics that are common to all human beings. If a wrong action is a violation of a person's human rights, then the moral injury to that person is extremely basic and significant: The person has not been treated in ways he is entitled to be treated simply by virtue of his humanity. And in that sense, a wrong that is a violation of a person's human rights seen as a denial of that particular person's humanity or of the moral significance of being human. Nevertheless, there are some rights that particular persons have, in particular social circumstances, that are not human rights. For example, when one enters into a contract, one acquires special rights (and special duties). Similarly, certain classes of individuals, have special rights as a result of their social roles or as a consequence of the particular forms of social interaction or institutional practices in which they participate, whether these rights were generated by explicit contracts or not. For example, students at a university may have the right to appeal their grades, as a result of the long-standing practices and shared understandings and expectations of that institution. In some cases these special rights are codified in law, in some cases in the written constitutions or operating rules of organizations or institutions (such as universities), and in some instances their existence can only be inferred from a knowledge of the ways in which the organizations or institutions actually work and the beliefs which participants in them have as to what they are entitled to. In the case of the human radiation experiments conducted by agencies of the U.S. government (or by parties under contract to 19 these agencies), there may be some controversy as to whether, if rights were violated, they were human rights or special rights. It is worth emphasizing, however, that the requirement of consent for medical and scientific experimentation had become a recognized principle of human rights in international law at least by the mid-1960s, since the right not to be subjected to experiments without consent was listed as a human right in the most fundamental international legal instruments articulating human rights at that time. [cite European Covenant on Civil and Political Rights, 1966, etc.] Whether the Nuremburg Code on experimentation constituted a principle of international human rights law from the time of its adoption in 1946 is perhaps disputable. However, it should be stressed that to be a human right it is not necessary that a moral requirement actually be recognized in international law. Human rights prescribe how human beings, as human beings, are entitled to be treated as a matter of morality, whether or not international law accurately reflects those moral requirements at any given time. This point can be illustrated by an earlier example: It can be argued that slavery was not clearly and ambiguously proscribed in international law until the middle of the Twentieth Century, with the publication of the Universal Declaration of Human Rights; nevertheless slavery prior to that time was a violation of human rights. In order to make a sound case that some of the U.S. government's radiation experiments violated human rights it is not necessary, therefore, to show that consent was lacking and that the right not to be subjected to experimentation without consent was at the time recognized as a human right in international law. However, as was already noted, the right of consent was a human right to international law from the mid-1960s on and hence any experiments in which consent was lacking that occurred during that period were violations of human rights according to international law. Suppose, however, that someone were to hold that the right of consent to experimentation is neither a (moral) human right or a human right according to international law. It would still be the case that in experiments in which there was no consent the subjects' rights were violated, if there were a special right to consent that existed in the absence of a human right. Whether such special rights existed at some or all of the periods during which the radiation experiments were conducted is a difficult question. To answer it requires a careful reconstruction of the institutional contexts within which the experiments occurred. However, we shall see that whether or not there were rights of consent to experimentation (whether human rights or special rights), there is a firm basis for concluding that important moral standards of the day--going all the way back to the earliest of the experiments in the 1940s--imposed an obligation on physicians participating in the experimentation to proceed only with consent, at least in those cases in which the experiments imposed risk on the subjects but promised no therapeutic benefit for them. These standards were essential to the ethics of the medical profession during, but also well before, the time of the earliest 20 radiation experiments. In addition, as we shall also see, in at least one case, a government agency that conducted and sponsored radiation experiments (the Department of Defense) officially recognized the requirement of consent to experimentation. It thereby imposed on itself a special obligation which it failed to fulfill, and was culpable for that reason, regardless of whether we can correctly view this policy as creating a special right in addition to imposing an obligation. X. INSTITUTIONAL FAILURE AND INDIVIDUAL CULPABILITY OF INSTITUTIONAL AGENTS As we have already seen, whether a human subject in any particular experiment had a special right not to be subjected to experimentation without consent depends upon whether the nature of the organization or institution within which that experimentation occurred bestowed such special rights. One way in which this might occur is if official policies of the organizations or institutions within which the experiments occurred explicitly recognized that subjects had this right. Whether this was the case in some of the radiation experiments can only be determined by a careful examination of the documents from which the official policies of the agencies in question are to be reconstructed. On the basis of the archival research already completed and the testimony already gathered by the Advisory Committee, this much can be said at present: As early as 1953, the highest official in the Department of Defense issued a memo stating that the principles of the Nuremburg Code were to be observed in human experimentation on atomic, biological, and chemical warfare done under the auspices of that agency. The Nuremburg code absolutely prohibits experimentation without informed consent, while also laying down other requirements (including the principle that experiments must be informed by the best available scientific knowledge and methods). If, as appears to be the case, some experiments were conducted without informed consent, then at least this much can be said: The Department of Defense was culpable for failing to observe its own standards for human experimentation. In addition, if historical research reveals that the official who issued the memorandum, and who occupied the highest position of authority in the Department of Defense, did not in good faith take reasonable steps to ensure that the standard he promulgated in his official capacity was in fact complied with, then there is at least a strong presumption that he, as an individual occupying that important institutional role, was culpable. 21 In this case, valid judgments of culpability (of the agency and the individual in charge of it) could be made even if it were not the case that the general culture of the U.S. at the time or the culture of the medical community or the culture of the biomedical research community recognized that human subjects have a right of informed consent. Nor would the culpability of the Department of Defense or of its chief executive officer depend upon the assumption that there is a human right of consent or that such a right is recognized in international law. In other words, even if more concessions were made to Historical Ethical Relativism than we have argued are warranted, there would still be a basis for making judgments of institutional and indeed of individual culpability. XI. THE CULPABILITY OF INDIVIDUAL PHYSICIANS AND OF THE MEDICAL PROFESSION Parallel points can be made about the culpability of individual physicians involved in the experiments, if they knowingly performed non-therapeutic experiments without their subjects' consent. Since well before the Nuremburg Code--indeed, at least since the time of Hippocrates--it has been a fundamental ethical tenet of the medical profession that the physician is not to harm his patient. Since it is universally acknowledged that sound medical treatment sometimes involves incidental harms (side-effects, etc.), the "First do no harm" admonition of the Hippocratic corpus is generally and quite reasonably understood to mean that painful or risky procedures or drugs may be administered by physicians to their patients only for therapeutic reasons, that is, only for the purpose of curing or ameliorating the patient's illness or for providing palliation. It follows that any experiments that physicians subjected their patients to that were undertaken without reasonable expectation of therapeutic benefit for the patient violated this fundamental principle of medical ethics. Physicians who knowingly engaged in such violations are culpable for doing so quite independently of whether or not their actions violated a principle of international law or official policies of government agencies such as the Department of Defense. Furthermore, even if the Hippocratic requirement of therapeutic benefit is construed broadly as simply ruling out experiments that produce harm without benefit to the patient unless the patient consents to the experiment knowing it holds no promise of therapeutic benefit, it appears that some of the radiation experiments violated the requirement. In particular, if physicians injected patients with plutonium in amounts which they believed to be hazardous, but without any prospect of therapeutic benefit, then they violated a fundamental principle of medical ethics that was acknowledged as such at the time. Just as importantly, if there were large numbers of instances in which physicians knowingly and willingly violated the fundamental principle of medical ethics that they are not to harm their patients or subject them to risk of harm without prospect of therapeutic benefit, the question arises as to whether 22 culpability may be ascribed not just to individual physicians but to the medical profession for failing to police its own members and to meet its own standards. It is central to the claim that medicine is a profession, as opposed to a mere occupation, that physicians have a fundamental obligation to avoid nontherapeutic harms or risks to their patients and that physicians collectively have an obligation to ensure that individual physicians fulfill this obligation.[cite standard works on professionalism] It is essential to the idea of a profession that it has not only technical, but ethical standards whose observance is the responsibility of the professional group. For this reason, professions are said to be "self-regulating" and this regulation includes the promulgation and observance of ethical standards. To deny that individual physicians have the obligation to refrain from subjecting their patients to non-consensual risk without prospect of therapeutic benefit, or to deny that the profession as a collectivity has a responsibility to help ensure that individual physicians fulfill this obligation, is either to deny that medicine is a profession or to misunderstand what its being a profession entails. But if individual physicians have this obligation and fail to fulfill it, they are culpable; and if the physicians as a collectivity fail in this most fundamental aspect of self-regulation, then the profession, qua profession, is also culpable. If the ongoing investigation of the human radiation experiments reveals that, with few if any exceptions, a significant number of physicians, including some who occupied prestigious positions in academic medical centers, willingly complied with government initiatives to submit patients to nontherapeutic experiments which put them at risk of harm, without consent or without revealing the risky and nontherapeutic nature of the experiments, then it is impossible to avoid the conclusion that there was a failure of the medical professional culture. If well-respected physicians in good professional standing not only failed to attempt to protect their patients from being used as mere means by their government, but actively and knowingly facilitated the exploitation of their own patients, then it is no exaggeration to say that not only individual physicians, but also the American medical profession collectively, is blameworthy. Moreover, the obligation in question may without exaggeration be called a constitutive moral commitment of medicine as a profession. In other words, the commitment to refrain from nontherapeutic harm is a component of the very identity of medicine so far as it has a legitimate claim to being a profession. Hence the failure to satisfy it is so serious that the culpability involved is quite profound. The fact that as early as 1946 the American Medical Association officially endorsed principles similar to those that later appeared in the Nuremburg Code only augments this conclusion. Even more so than with judgments about the culpability of individuals, the chief importance of the judgment that the medical profession is blameworthy for failing to honor its constitutive moral commitment lies in its implications for future action. If a thorough and dispassionate investigation of the radiation experiments warrants a judgment that the medical profession was culpable, then there are 23 fundamental moral implications for the medical profession today. First of all, the integrity of the profession requires that, if there was a serious failure of the profession to hold its members to their most fundamental obligation, this must be acknowledged publicly as a failing, and as a failing of profound magnitude. Nothing less than such a public admission of culpability is required if the profession is to deserve that public trust it claims as its right. Second, the profession also has an obligation to take steps to ensure that such a failure is not now occurring and to ensure that it will not occur in the future. Discharging this obligation requires not only cooperating with government to devise and implement new regulations concerning human experimentation if such changes are undertaken, but also playing a leadership role in the process by which the evaluation of current regulations and the development of new ones is accomplished. It would be extremely unfortunate if the medical profession relegated itself to the role of reacting to reforms proposed by the government or advocacy groups among the public, and worse still if it served as an impediment to reform, by failing to acknowledge frankly the part which its members played, by omission or commission, in the abuses of the past. XII. DEGREES OF CULPABILITY Having said all this, however, it is necessary to stress once again that culpability, whether of institutions or of individuals or of professions, may be of greater or lesser seriousness. Other things being equal, moral wrongdoing that causes great harm, or that expresses a denial of a person's humanity by violating human rights, warrants harsher judgments of culpability than other wrongful acts. Although in earlier sections of this paper, we examined some egregious moral wrongs--including slavery and the Nazi atrocities--the point of doing so was not to suggest that whatever wrongs were perpetrated in the course of the human radiation experiments were of the same gravity, nor that the culpability of the agents or institutions involved was equally serious. Instead, our chief aims have been as follows: First, to show that, where the facts to support them are available, there is nothing in principle wrong with making judgments of culpability about agents, as well as institutions and organizations, in the past. Second, we have endeavored to articulate several different standards-- human rights, special rights, and requirements stated in institutional and professional policies and codes--that can serve as grounds for making judgments of culpability. Third, in the light of information that has already emerged from the on-going investigation of the radiation experiments, we have attempted to convey the prima facie plausibility of some judgments of culpability concerning not only agencies, but individuals in government and engaged in the practice of medicine, as well as the medical profession itself. We also wish to repeat that in articulating the conditions under which agents responsible for the radiation experiments could be 24 said to be culpable we are not implying that if they were culpable, then they were individuals of bad moral character. As our analysis shows, whether the subject of a judgment of culpability is a figure from the past or one of our contemporaries, it is important to distinguish between the moral character of a particular action an agent performs and the character of the agent. Justifiable judgments of character must be based on accurate information about long-standing and stable patterns of action in a number of areas of life, under a variety of different situations. Such patterns cannot reliably be inferred from information about a few isolated actions a person performs in one particular department of his life. Furthermore, even though good intentions do not defeat judgments of culpability, there is a great deal of difference between a person who acts wrongly from good motives and one whose motives are themselves profoundly defective. Saying that some individuals involved in the radiation experiments were culpable is not to suggest that their characters resembled those of the perpetrators of the Nazi experiments. XIII.THE MORAL CASE FOR MAKING RETROSPECTIVE JUDGMENTS CONCERNING RIGHTS VIOLATIONS AND CONCERNING INDIVIDUAL CULPABILITY Even if, as we have just argued, there is both a moral and a factual basis for making judgments of individual, institutional, and professional culpability regarding some of the human radiation experiments conducted under the auspices of the U.S. government, a basic question remains: Even if such judgments are valid, ought they to be made? Some might argue that there is nothing to be gained from issuing judgments of culpability, that energies should be focused on the future--on realistic efforts to ensure that whatever abuses did occur do not happen again. It would be a serious mistake, however, to act as if the choice is either to make judgments of culpability or to focus on future prevention--as if the two were not connected. Surely effective preventive action must include serious efforts to make government officials and biomedical researchers in the future accountable for complying with sound ethical principles and procedures for the protection of human subjects. Holding people accountable--and putting them on notice as to the conditions under which they will be held accountable--requires specifying what their obligations are and declaring that they will be judged culpable for failing to fulfill those obligations. It is true that setting up mechanisms for holding persons accountable in the future does not require the making of judgments about the culpability of persons in the past. Nonetheless, a case can be made that efforts to achieve future accountability are likely to be more effective if potential wrongdoers are not allowed to console themselves with the hope that if their wrongful acts go undetected long enough they, as individuals, will not be held culpable. Refraining to make judgments of culpability about past abuses of human subjects--where such judgments can be responsibly made on the basis of relevant moral standards and accurate factual information about what actually transpired-- can only feed this dangerous hope. 25 In other words, by not making judgments of culpability concerning actions in the past few decades, we run the risk of setting a precedent that is both dangerous and irresponsible. Perhaps even more importantly, it would be very hard if not impossible to explain and justify effective proposals for institutional reform and for reform of the medical profession without making clear references to particular instances of past culpability. For unless this is done, the specifics of reform proposals may appear unmotivated or of dubious relevance. Moreover, once the implausibility of the more extreme forms of historical relativist skepticism about retrospective moral judgments is exposed, as we have attempted to do here, there is no conceptual bar to making judgments of culpability. We have also argued that there is nothing conceptually amiss about making judgments about rights-violations in the past. Given that this is so, there is a very compelling moral reason not to refrain from making retrospective judgments concerning rights violations when they are supported by an accurate view of the facts and by a proper understanding of rights: to do so would be to compound the injustice which those whose rights were violated have already suffered. To fail to acknowledge that rights were violated is to fail to show proper respect for the persons whose rights were violated--to act as if they had no valid grievances, as if no moral injury had been done to them. It would be a sad postscript to a very disturbing chapter in American history if the body assigned the task of setting the moral record straight on the radiation experiments failed to show proper respect for those very persons whose dignity was assaulted by their own government in the name of a false moral humility or a facile skepticism about the possibility of retrospective moral judgment. Given the fact that there is no conceptual bar to making retrospective judgments of individual culpability or to judging that the rights of individuals were violated in the past, and given the practical and moral reasons for making such judgments when there are adequate facts to support them, the burden of argument should lie with those who say we should refrain from making such judgments. The central point of this paper is that this burden of argument has not been borne. Finally, if the charge of the Advisory Committee is taken at face value, honoring it requires making moral judgments about the experiments, provided that the correct ethical criteria are used and assuming, of course, that the relevant facts for applying those criteria are established. There is nothing in the charge of the Advisory Committee that authorizes it to be selective in making ethical evaluations--no hint that it is to refrain from judgments of individual or professional culpability when such judgments are well-grounded. On the contrary, the public deliberations of the Advisory Committee up to the present point in time indicate that it will judge the U.S. government as well as some particular government agencies to be culpable in some instances. To make such judgments but to refrain from making equally well-grounded judgments concerning the culpability of individuals in positions of authority or concerning the medical profession would be arbitrary and unjustifiable--and would most likely to be perceived as such 26 not only by those who suffered as a result of the experiments but by the general public as well. In sum: The Advisory Committee cannot fulfill its charge if it refrains from making retrospective moral judgments altogether, but it cannot fulfill its charge responsibly if it issues certain judgments of culpability while excluding others without good reason. XIV. EVALUATING THE PAST BY PRESENT STANDARDS We began this investigation by observing that uneasiness about retrospective moral judgment stems from doubts about whether it is valid to apply current moral standards to actions undertaken at a time when those standards were either unknown or not widely accepted. We have argued that this question cannot be answered adequately unless we sort out the different types of retrospective moral judgments and articulate and critically evaluate precisely what it is supposed to be about them that renders them problematic or invalid. We have seen that the mere fact that what we now regard as the correct moral standards were not widely accepted in the context in which earlier actions occurred does not in itself undercut the valid application of those standards to those actions in all types of retrospective moral judgments. Even when deep and pervasive cultural beliefs at the time blind agents to the moral significance of their actions, we must distinguish between culpable and nonculpable culturally-induced moral ignorance. Where individuals could have, and should have "known better" it is sometimes possible to make valid retrospective judgments of culpability. Just as importantly, we have also seen that in many cases significant moral evaluations of past actions can be made without relying upon moral standards peculiar to a later period. As the case of the human radiation experiments demonstrates, it is quite proper for us to evaluate past agents, institutions, and organizations by the moral standards which they espoused in their own time. Thus, for example, if, as we have argued, some of the radiation experiments clearly violated a fundamental tenet of medical ethics that was known and accepted at the time, then wrongs were done, regardless of whether it is also appropriate to evaluate their actions by reference to the more complex and more demanding requirements of informed consent as we presently understand them. XV. CONCLUSIONS The main points of our investigation of retrospective moral judgment can be formulated briefly as follows (without rehearsing the arguments given to support them): (1) It is important to distinguish between several different sorts of judgments we may make about the past: judgments of the wrongness of acts, judgments of the culpability of agents, institutions, or organizations, judgments about the violation of rights and the legitimacy of claims for redress and compensation, and judgments about the character of agents. 27 (2) The mere passage of time does not in any way alter the validity of moral judgments. Whatever is problematic about retrospective moral judgments must have to do with assumed differences in the cultural context of actions. (3) Unless one accepts Extreme Cultural Ethical Relativism there is no reason to believe that the fact that earlier actions occurred in a different cultural context in itself renders retrospective moral judgments invalid. (4) Accepting Extreme Cultural Ethical Relativism means denying that there are any human rights whatsoever, since human rights by definition, accrue to individuals simply by virtue of their humanity, independently of the cultural context or period of history in which they happen to live. (5) What may be called culturally-induced ignorance, either of the facts or of the moral features of a situation, may lead individuals to perform wrong actions. If, but only if, their culturally-induced blindness is nonculpable, agents who perform those wrong actions may be morally blameless for their acts, even though their acts constitute failures to do their duty and are violations of others' rights. (6) In cases of nonculpable cultural blindness that leads to wrong action, it is better to describe the situation as one in which there was a nonculpable failure to perform a duty that the agent had, rather than to deny that he had duty. To deny that the individual had a duty is either to] abandon the correlativity of rights and duties and thereby jettison the usual concept of a right, or to deny that the wrong constituted the violation of a right, thereby undercutting any claims for compensation or redress, and failing to acknowledge the dignity and moral standing of the one whose right was violated. (7) A proper appreciation of the different cultural (and legal) context in which past actions occurred can lead to suspending or tempering judgments of individual culpability, or of the correctness of punishing the culpable agent, or to softening what would otherwise be harsh judgments of character based on the wrongs the individual committed, without denying either the wrongness of past actions, the failure of agents in the past to do their duties, or the fact that individuals' rights were violated and that compensation or redress is owed to them. (8) In some cases, a fair consideration of the cultural context of past events may lead to the conclusion that those individuals who violated others' rights should not bear all or even any of the costs of compensating those whose rights were violated. Similarly, 28 appreciation of the cultural context may speak in favor of mitigating or waiving punishment that would otherwise be appropriate, without denying that wrong actions were done, that rights were violated, or that agents were culpable. (9) A sensitive understanding of the cultural context of past actions may also lead us to the conclusion that even if agents conscientiously but erroneously applied sound moral rules, for example, by mistakenly thinking that certain valid exceptions were present that rendered permissible otherwise impermissible acts, this mistake was less blameworthy than it would have been in other circumstances. But, again, mitigating our judgments of the culpability of the agents does not imply that their actions were not wrong, nor that they did not fail to perform their duties, nor that they did not violate anyone's rights, nor that no one is entitled to compensation or redress. (10) From the fact that in some cases we lack sufficient factual information to make valid judgments that past agents were culpable, it does not follow that such judgments are in principle invalid, nor that we lack adequate information to make them in other cases. (11) (Therefore) A proper appreciation of the ways in which cultural contexts in the past may differ from our own in no way bars us from making well-grounded retrospective moral judgments, if the relevant facts are available. (12) Evidence already gleaned from the ongoing investigation of the human radiation experiments provides prima facie support for several important classes of moral judgments that are central, not only for the task of preventing future abuses, but also for seeing that past injustices are rectified. Among these are judgments of culpability ascribed to individuals, organizations, and the medical profession itself, for failing to live up to basic moral standards that are not only recognized today, but which were applicable at the time the radiation experiments took place. 29 INDEX I. The Problem of Retrospective Moral Judgement and its Importance ................................... 1 II. the Charge of the Advisory Committee on Human Radiation Experiment: Ethics Evaluation and Evaluation of Ethical Criteria ....................2 III. Options for Retrospective Moral Judgement: The Case of the Human Radiation Experiments ...............5 A. Extreme Historical Ethical Relativism .........5 B. Moderate Historical Ethical Relativism-- Separating the Wrongness of Actions from the Culpability of Agents......................6 C. Moderate Historical Ethical Universalism Judgements of Culpability of Agents in the Past are Valid, but Historical Differences Mitigate the Implications of Culpability for Punishment and for Judgements of Character......................................6 D. Extreme Ethical Universalism ..................7 IV. Temporal Distance in Itself Makes No Moral Difference (Historical Ethical Relativism Reduces to Cultural Ethical Relativism.....................................8 V. Excuses and Mitigating Factors: Nonculpable Factual and Moral Ignorance...................................10 VI. The Significance of Cultural Context for Judgements About the Magnitude of Culpability, about Punishment, and About Character...................................15 VII. Retrospective Moral Judgement and Differences in the Applicability of Exceptions to Valid Moral Principles......................................16 VIII. Retrospective Judgement and the Evolution of Moral Standards ......................................17 IX. Human Rights Violations, Rights Violations and other Moral Wrongs ...................................19 X. Institutional Failure and Individual Culpability of Institutional Agents...............................21 XI. The Culpability of Individual Physicians and of the Medical Profession ...................................22 XII. Degrees of Culpability ...............................24 XIII. The Moral Case for Making Retrospective Judgements Concerning Rights Violations and Concerning Individual Culpability.....................25 XIV. Evaluating the Past by Present Standards .............26 XV. Conclusions ..........................................27 30