It has recently become socially acceptable to sneer at the professions. Notwithstanding the reruns of Parry Mason and Marcus Welby, M.D., almost everyone these days seems to have a bad word for doctors, lawyers, and the rest.

Alan H. Goldman's The Moral Foundations of Professional Ethics adds to the literature of anger and indignation directed against those in professional life. But unlike most of the critics, Goldman's target is not the dishonest lawyer or the careless physician. Nor is it some new "conspiracy against the laity," to use Shaw's expression. Rather. Goldman takes aim at the "well-intentioned" practitioner, endeavoring to live up to the highest ethical standards of his or her profession. For Goldman, there is hubris in this: a presumed exemption from the requirements of ordinary morality. It is not the behavior of professionals he is concerned to criticize. Rather it is their suspect claim that they "must operate within different moral frameworks." Goldman subjects this claim-its variants and the reasons given for them-to exhaustive analysis and evaluation and, in general, concludes that the central problem in professional ethics is not that practitioners violate their codes but, rather, that they assume without question that they ought to adhere to them.

The Common Moral Framework
Goldman is a philosopher who has written extensively on issues in ethics and social and political philosophy. His criticism of professional ethics has to be seen in the light of what he says about our "common moral framework" which he describes in his first chapter. That framework is a modified utilitarianism. Ordinary utilitarianism would require us to consider the interests of all on the same scale and to act in a way that maximizes the overall satisfaction of desire. One is not permitted to play favorites, even on one's own behalf.

Goldman's modification of utilitarianism reflects to a significant degree recent work of established theorists like John Rawls (A Theory of Justice) and Ronald Dworkin (Taking Rights Seriously). It is an effort to take into account some of the more serious difficulties with utilitarian doctrine, notably its obsession with the satisfaction of desire and its inability to provide a place for what we think of as rights. The move is to mark a distinction between low level interests, the satisfaction of which is counted as "mere utility," and overriding interests representing what Goldman calls "the preconditions for the exercise of creative individuality and valuation." These latter interests are not properly measured fn terms of the intensities of the desires associated with them, but, instead, we must take into account that they are protective of individual integrity, our ability to formulate and pursue our life plans, our foundational interest in autonomy.

Protection of rights, in other words, represents a commitment to a certain ideal of personhood-not a mere measurement of desire. As Goldman puts it, rights "express interests of individuals important enough to be protected against additions of lesser interests across other persons." As Dworkin puts it, "rights trump utilities."

Having distinguished between the interest in the satisfaction of desire and the interest in personal integrity (which merits protection even if we don't desire it), Goldman is in a position to make two important points. First, echoing Charles Fried, he points out that protection of this second type of interest secures for each of us "amoral space in which individuals can develop and pursue their own values within asocial context." The freedom we have within this moral space includes the authority to exercise rights "even when doing so is wrong because unnecessarily insensitive to the interests of others." We may thus have the right to speak even when we offend unjustifiably.

Goldman's second point is that these rights limit the degree to which we may pursue personal values-our own and, where we have clients, those of others. While our foundational right to autonomy gives us freedom to pursue purposes that do not take into account the interests of others (contra the classical utilitarian), in pursuing these purposes we are not permitted to trespass upon the private moral spaces of others. We may speak freely, not taking into account the interests of others, but we are not allowed to violate their moral rights.

But surely, one might object, there is some right (as opposed to mete interest) not to be offended unjustifiably. And surely that right, whatever its weight, can be placed in the balance against the right to speak freely. Goldman seems to agree but says, troublingly, that "it is impossible to state any interesting general and absolute priorities among types of rights" (page 30j. We cannot even say that rights not to be physically harmed take precedence over others. Such is our common moral framework, according to Goldman.

Now professionals, according to Goldman, maintain that the social positions they occupy are "strongly differentiated." (This is a technical term that Goldman coins, defining it perhaps less clearly than he might have.) By this Goldman does not mean simply that the professional has contractual obligations to perform certain tasks for others. Roles that have this feature are "weakly differentiated." Weak differentiation has not been a pressing problem in ethics: a good deal has been written, especially in legal and political philosophy, about "special obligations" arising out of some type of consent. For Goldman the important point about these contractual obligations is that they do not create moral license: one is generally not permitted to do for others what one is morally forbidden to do for oneself.

But strong differentiation implies license: the professional is "permitted or required to ignore or weigh less heavily what would otherwise be morally overriding considerations in the relations into which he enters as a professional." It means that being a professional makes a big moral difference. This claim does pose a pressing problem for traditional moral philosophy which has strongly urged, at least since Kant (The Foundations of the Metaphysics of Morals), that any sound moral principle has to apply to all rational agents, has to be universalizable. Goldman sees professionals as claiming both augmented moral authority to defend certain interests of others and diminished moral responsibility to take into account opposing interests. They are claiming an exemption from the requirements of ordinary morality and it is this that raises Goldman's eyebrow.¹

The Well-Intentioned Lawyer
Let us take a look at what may be the most persuasive part of the book: Goldman's treatment of legal ethics.² At bottom, Goldman is outraged that lawyers believe that they are obligated, by their principle of full advocacy, to violate the moral rights of others in the pursuit of their clients' interests. His rhetorical question puts his position succinctly: "should lawyers ignore the interests of adversaries in pursuing their clients' objectives, in apparent violation of ordinary moral demands?" Goldman interprets Canon Seven of the American Bar Association Code as answering in the affirmative: "A lawyer should represent a client zealously within the bounds of the law." The stage is set for Goldman's criticism.

It is worth noting at the outset that common morality does not seem to require that one take into account all of the interests of adversaries. In competitive games, in war, in romantic rivalry it appears to be perfectly acceptable to ignore at least some interests. To be sure, we may not ignore all of them: opponents in tennis may not be stabbed. But then lawyers do not claim the right to stab their adversaries. With respect then to what rights of adversaries do lawyers claim authority to trample? Given ordinary morality, what Goldman needs to show in order to make out his criticism of full advocacy is that there is some right of a third party that the lawyer violates in the pursuit of a mere trivial interest of his or her client. Mace utility would thus be trumping a right, and common morality will have none of that.

Goldman's discussion of this issue is strangely dissatisfying. Consider, for example, his "rape case," adduced to show how full advocacy violates the rights of rape victims:

Lawyer C is defending an accused rapist. His client privately admits to him midway through the trial that he did force himself upon the victim, but claims that "she was asking for it." He insists on continuing a plea of not guilty on grounds that the woman was a willing sexual partner. She has taken the witness stand and can be cross-examined. The lawyer knows that she has been suffering from an acute nervous condition since the incident, and she appears to be still in a mentally fragile and vulnerable state. Should he aggressively cross examine to destroy the credibility of her testimony?

This is the full text of the case. It is of interest that Goldman does not tell us how we or the lawyer are supposed to know that the client is guilty of the legal offense of rape.³ Unlike the events in the case, reality does not come labeled. Nor does Goldman tell us what the elements of the crime of rape are in the jurisdiction in which the trial occurs. Is consent not a defense when force is employed subsequently? The case does illustrate the difficulty that lawyers may have getting clients to speak freely. And it raises a question whether the prosecutor erred, perhaps ethically, in placing on the stand a witness whose testimony will not be credible. We might ask whether victims of rape should be assigned special counsel to insure that their legal interests are adequately secured: the prosecutor represents the state and not the victim. But these issues do not attract Goldman's attention.

Instead he asks whether the lawyer should aggressively cross examine to destroy credibility when he knows the witness to be telling the truth. The truth about what? Goldman doesn't say. And just how is the lawyer planning to destroy credibility? Again Goldman is silent, though he rails about lawyers' "tactics." If, for example, there is evidence that the witness is an habitual liar, or that she has it in for the defendant, or that her condition makes it unwise to rely exclusively upon her testimony, should defense counsel refrain from bringing these matters up on the grounds that the witness is vulnerable? Is calling the court's attention to this evidence merely a "tactic" or is it the heart and soul of what it is to be an advocate? Goldman doesn't get to these questions.

Setting them aside, let us consider Goldman's assumption that full or zealous advocacy would have lawyers degrade witnesses whenever it serves the purposes of the client. We could discuss the procedural protections against the badgering and harassment of witnesses, protections that are part of trial procedure. We could consider whether these protections are adequate-Goldman provides no evidence that they aren't. But it is perhaps more germane to look at the ABA Code. In the very section invoked by Goldman (Canon Seven-Zealous Advocacy) we find: "A lawyer does not violate this Disciplinary Rule ...by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. "Just who is urging the degradation of witnesses?

But even if the legal profession did regard it as obligatory to ignore the interests of witnesses, that alone would not show that lawyers act immorally. On Goldman's theory, what has to be shown is that the interest of the witness is one representing a "precondition for the exercise of creative individuality and valuation." That would make it worthy of protection as aright. But we have no idea what has happened to this witness, much less that she has been denied some precondition. Goldman may be correct that rape victims have rights that are violated by the well-intentioned defense counsel. But he strangely neglects to explain what these rights are and how they are violated.

Moreover, even if Goldman were to establish that the witness has rights that are ignored by the well intentioned defense counsel, even that would not establish the lawyer's immorality if there were a counterbalancing moral rights on the other side. For Goldman, the victims of lawyers seem nearly always to have moral rights; clients, only interests. Nearly always, but not quite. In defending lawyers who defend Nazis. Goldman writes "There is all the difference fn the world ...between aiding Nazis to achieve all their aims, and aiding them by protecting their constitutional rights. Surely lawyers trained to draw fine distinctions can perceive that not very fine one."

Lawyers, to be sure, can and do draw that distinction-more often than Goldman does. They invoke it on behalf of their unadjudicated but morally guilty clients. If the rapist has fundamental moral rights guaranteed by the Constitution-the right to counsel, the right to due process, the right to cross examine witnesses, to present evidence in one's own behalf, to appeal to the state for that which is guaranteed as a matter of legal right-then those rights may be placed in the balance against the rights of the witness. Only if the witness's rights override the client's rights can we say that the lawyer acts immorally.

But, as we noted earlier, Goldman believes that it is "impossible to state. . priorities among types of rights." Thus, if he is correct in this last point, as long as the lawyer is protecting or exercising some right possessed by the client, it will never be possible to establish that the witness's right takes precedence over the client's.Not only does Goldman fail to establish that lawyers are required by their code to violate unjustifiably the moral rights of others. His position appears to imply that no one could establish this.

The Well-Intentioned Doctor
Goldman's treatment of doctors generates similar disquiet. As with his treatment of lawyers, his question is "whether central medical norms can override rights of others, here patients, that would otherwise obtain." The central medical norm that Goldman scrutinizes is one he calls the "Hippocratic principle": the principle that requires doctors to provide optimal treatment, cure, or health maintenance to patients. Goldman's charge is that the medical profession claims that the Hippocratic principle licenses physicians to withhold the truth from patients and to make decisions for them regarding courses of treatment. Since people normally have the right to make decisions that concern themselves alone, doctors depart from the requirements of ordinary morality when they exercise "special moral authority" to manipulate or usurp patient decisions.

Goldman's strategy is to set up a respectable argument for the Hippocratic principle-importantly, not one drawn from medical literature and to show in a workmanlike manner the flaws with that argument. His criticism is based upon his claim that "the most fundamental right is the right to control the course of one's own life, to make decisions crucial to it, including decisions in life-or-death medical contexts." (Do we have here an interesting general priority among types of rights?) Because self determination is of fundamental value, the Hippocratic principle cannot override patients' rights to know the truth and to make their own decisions.

I believe that Goldman is correct in his assessment of medical paternalism: it ought to be eschewed by the profession. And it is true that doctors have often been too quick to encroach upon the authority of their patients. But it is not at all clear that the defect in practice is the fruit of a misguided professional conscience. While doctors used to know their patients quite well, now they often meet patients for the first time in the midst of crisis. Medical practice may simply not have caught up with the requirements of a vastly changed context. Communicational skills that were not needed years ago may now have to be developed. Thus, what appears to be paternalism may just be an understandable lag in a process of adaptation.

Moreover, informing patients and helping them to be clear about their full range of options takes time and emotional energy as well as skill. It may be that the constraints of the institutional setting, the personal priorities of doctors (the discomfort some may feel in discussions of impending death, especially where the legal consequences of decisions are unclear and fraught with peril), and the needs of other patients make it easy for doctors to give short shrift to the requirements of informed consent. The point is that one cannot go from the premise that many doctors act paternalistically to the conclusion that the medical profession both endorses paternalism and claims a special license to encroach upon the autonomy of others.

What then is Goldman's evidence that the medical profession claims the moral license he says it does? One might think that Goldman's "Hippocratic principle" is to be found in Hippocrates. Goldman refers to the tradition of "doing no harm" to patients. Hippocrates, to be sure, is usually credited with the maxim prim umnon nocere (above all, do no harm). But, as Beauchamp and Childress note in Principles of Biochemical Ethics, that precise language is not to be found in the Hippocratic corpus. (The Epidemics contains a phrase that has been translated as "at least do no harm.")

But even if primum non nocere were right there in the Oath, it could not without violence be interpreted as requiring doctors to do everything they think is of benefit. If Goldman says that doctors interpret the Hippocratic tradition in this way, he owes us some hard evidence for this charge. One searches the book in vain for that evidence. Indeed, if the well-intentioned physician were to review recent work on informed consent and truth telling, in order to form a responsible judgment on the propriety of medical paternalism, he or she would discover an emerging consensus within the medical profession that much of the paternalism that has crept into medical practice is not ethically defensible. If the horse that Goldman is beating ever was healthy, it is surely dead now (or at least terminally ill).

Goldman's criticism of medical ethics appears to presuppose that the well-intentioned physician is an elitist bully, committed to self-righteous lying and manipulation. Having worked with many physicians on ethical problems, I can only say that I have met none who are ready to break a lance in defense of the overreaching that Goldman condemns. Having read Goldman, one might expect the American Medical Association Principles of Professional Ethics to be sounding forth the trumpets of paternalism. Instead one reads: "The principle objective of the medical profession is to render service to humanity with full respect for the dignity of man." The new draft puts the point even more strongly: "A physician shall be dedicated to providing medically competent service with compassion and respect for human dignity" (emphasis added). Goldman's charges against the well-intentioned practice of medicine are grave indeed. But the search for his line of argument leads only to innuendo.

Judges, Elected Officials, Managers, Etc.
Most of those reading Goldman's book will be surprised that he devotes over a third of it to the professional ethics of judges, elected politicians and business managers None of these are professions. Even his broad definition of "profession," in terms of "the application of specialized knowledge in the interest of a clientele." fails to license this inclusion: business managers and politicians may not have specialized knowledge and judges can hardly be said to serve a clientele (unless one is making an accusation).

What Goldman leaves out of his definition (though he is aware of it) is that professions typically enjoy a legal monopoly with respect to some service of significant social importance. Professionalization is the political process by which such a monopoly is achieved.⁴ Society delegates to the organized profession a kind of exclusive responsibility for some matter of substantial concern. Professional certification programs and codes of ethics are typically the main means by which the organized profession endeavors to discharge the responsibilities it has assumed in achieving its monopoly status. The code is an assurance that the special legal privileges granted to professionals will be exercised in the public interest. The claim to maximal competence, the commitment to public service (expressed in codes), and the assumption of exclusive responsibility (delegated generally by legislative bodies) all go together. Goldman fails to appreciate the reasons that professional organizations have for holding their membership to a common standard of conduct.

This failure is probably most serious in his treatment of confidentiality. His example in medicine is the physician who believes that the child she is treating has been abused by the parent who brought him in. Goldman's view is that doctors have the same duty to report that everyone else has: "the claims of others to be spared unnecessary harm must be balanced against the duty of confidentiality ...imminent danger to others outweighs the breach of trust..." Breaching confidentiality will thus reduce harm. But is it so?

If doctors reasoned as Goldman, they would inform the authorities whenever they think that children are endangered by their parents, and abusive parents would thus lose custody. But if such cases are routinely reported, parents will soon learn of the practice. Since parents neither want to be in trouble with the authorities nor to lose custody, they can be expected to hesitate and refrain from taking children to obtain care. Thus the children that Goldman wants to rescue from harm will not be saved under his reporting rule. Indeed, these children will be even worse off since neither will they receive medical care nor will their parents received advice from a concerned physician. Thus children who now get help under the confidentiality rule (through medical care and advice to their parents) will not receive that help under Goldman's reporting rule.

Finally, child-abusing parents will not be the only ones with reasons to hesitate before taking their injured children to physicians for help. Parents who fear that they may be wrongly identified as abusers will hesitate as well. (I happen to know of two such cases: in one the parent was a pediatrician, well aware of the indications usually noted by colleagues.) There would thus appear to be more harm under Goldman's reporting rule than under a confidentiality rule. I agree with Goldman that in general people should report such cases. But not doctors.

Today the patient meets the doctor in a formal relationship that is specified largely by the organized profession. The practice of breaching confidentiality can put the entire profession at risk. It can poison the environment in which the medical profession does its best work. Physicians have enough difficulty as it is getting people to talk about medical problems. They do not want to make it a consequence of child abuse (or injuries that resemble those of child abuse) that the parents involved will be unfree to obtain the medical care needed for their children. It may be that physicians have a responsibility to help civil authorities. But not when that help is illusory and when it undercuts the capacity of the profession to meets its primary responsibilities.

I think that Goldman's book, at bottom, tries to assure philosophers that they have little to gain from the study of professional ethics. It will be a shame if it succeeds in this. Many of those in the professions are in genuine ethical trouble and philosophers have much to contribute to the resolution of their problems. But derisive sneers can't help. The discipline of philosophy can, but only if the skills are developed that will allow fruitful dialog. This involves learning the languages of the professions, learning to see the world though those eyes, becoming familiar with the rites of the courtroom and the rituals of the operating theater.⁵

It is of interest, I believe, that Goldman finds strong differentiation only among parents, teachers and judges. These three roles are perhaps more familiar to philosophers than any of the others considered and, indeed, Goldman himself has held two of the three. Let me proffer that as philosophers become more familiar with the practices of law, medicine, journalism, nursing, engineering, and so on, strong differentiation may well come to be seen as the rule rather than the exception. The study of professional ethics provides philosophy with fresh new data that must be integrated into our theories of ethics. Goldman tries to show that professionals must adapt their ethics to the requirements of his "common moral framework." But accommodations may have to be made in the other direction as well.

Footnotes
1. Goldman is not the first philosopher to haw seen this problem. It has been discussed in Ban femurs Freedmen's "A Meta ethics for Professional Morality" in Ethics, Volume 89, October 1978, and additionally, in my .'Professional Responsibility end the R& Responsibility of Professions," delivered at 1978 Colloquium on Collective Responsibility in the Professions et the University of Dayton, published in the Summer 1981 issue of the University of Dayton Review end forthcoming in Elfin, Pritchard and Robison, ads., Profits and Professions (Humane Press). Both Freedmen end I come to conclusions very different from Cal s.
2. The chapter appears to have persuaded David Luban in his review of Goldman's book is the Hastings Center Report, tune 1981. Luban is one of the few philosophers who have looked closely at legal ethics.
3. I assume that the ambiguous expression "accused rapist" means rapist who has been accused of something, presumably rape" end not "person who has been socased of rape but not established to be guilty of it."
4. Goldman does not seem to be familiar with the important literature on the sociology of the professions. A helpful article hero is Harold Wilensky's "The Professionalization of Everyone" in The American journal of Sociology 70 (1904). 137.
5. I have discussed some of the problems involved in doing this type of work in an article entitled "Clinic Philosophy; forthcoming in the journal Teaching Philosophy

Portions of this essay have previously appeared in the Westminster Institute Review, published by the Westminster Institute for Ethics end Human Values.