‘NOBODY TOSSES A DWARF!’ THE RELATION BETWEEN THE EMPIRICAL AND THE NORMATIVE REEXAMINED

‘NOBODY TOSSES A DWARF!’ THE RELATION BETWEEN THE EMPIRICALAND THE NORMATIVE REEXAMINED

CARLO LEGET, PASCAL BORRY AND RAYMOND DE VRIES

Keywordsempirical,methodology,bioethics,theory

ABSTRACTThis article discusses the relation between empirical and normativeapproaches in bioethics. The issue of dwarf tossing, while admittedlyunusual, is chosen as a point of departure because it challenges the readerto look with fresh eyes upon several central bioethical themes, includinghuman dignity, autonomy, and the protection of vulnerable people. After anoverview of current approaches to the integration of empirical and norma-tive ethics, we consider five ways that the empirical and normative can bebrought together to speak to the problem of dwarf tossing: prescriptiveapplied ethics, theoretical ethics, critical applied ethics, particularist ethicsand integrated empirical ethics. We defend a position of critical appliedethics that allows for a two-way relation between empirical and normativetheories. Against efforts fully to integrate the normative and the empiricalinto one synthesis, we propose that the two should stand in tension andrelation to one another. The approach we endorse acknowledges that asocial practice can and should be judged both by the gathering of empiricaldata and by normative ethics. Critical applied ethics uses a five stageprocess that includes: (a) determination of the problem, (b) description ofthe problem, (c) empirical study of effects and alternatives, (d) normativeweighing and (e) evaluation of the effects of a decision. In each stage, weexplore the perspective from both the empirical (sociological) and thenormative ethical point of view. We conclude by applying our five-stagecritical applied ethics to the example of dwarf tossing.

Everything.com defines dwarf tossing as the ‘ancient art’of throwing a small person as far as possible.1 Thisbizarre, though relatively safe, practice – in most casesthe dwarves being tossed wear helmets – has created

controversy in both the United States and Europe.Is dwarf tossing a threat to the dignity of dwarves?What about dwarves who make their living by strapp-ing on a helmet and allowing themselves to be launchedinto the air by burly, slightly drunk men and women?What about dwarves who enjoy sailing throughthe air?

While admittedly unusual, the case of dwarf tossingilluminates several themes central to the field of bioethicsincluding the issues of human dignity, autonomy, and theprotection of vulnerable people. We prefer this issue to

1 http://everything2.com/index.pl?node_id=1289020 [accessed 16 April2008]. We are aware that the political correct term for people withdwarfism is ‘little people’. The quote in our title refers to Peter Jackson’sfilm of J.R.R. Tolkien’s The Lord of the Rings, ‘The Fellowship of theRing,’ where at the broken bridge in the Mines of Moria, the dwarfGimli tells Aragorn: ‘Nobody tosses a dwarf!’ before jumping over alarge gap himself.

Address for correspondence: Carlo Leget PhD, Tilburg University, Faculty of Humanities, Department of Religious Studies and Theology, PO Box90153, 5000 LE Tilburg, The Netherlands. Tel: +31-13-466 2606 or 466 3563; Fax: +31-13-466 2892; E-mail: [email protected]

Bioethics ISSN 0269-9702 (print); 1467-8519 (online) doi:10.1111/j.1467-8519.2009.01711.xVolume 23 Number 4 2009 pp 226–235

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the more traditional topics of bioethics – like decisions toforgo medical treatment or the desire for active euthana-sia – because it helps us to see the well-discussed issues ofbioethics with fresh eyes. It also problematizes the rela-tionship between empirical and normative methods andleads to fruitful reassessment of the value of each methodfor bioethics.

1. WHY INTEGRATE THE EMPIRICALAND THE NORMATIVE?

Legislators and officials in locations as disparate asFlorida, New York and France have prohibited thethrowing of dwarves, finding it offensive to humandignity. Encouraged by members of the Little People ofAmerica – an organization ‘dedicated to improving thequality of life for people with dwarfism’ – the Floridalegislature banned the practice in 1989. The state of NewYork followed suit in 1990.2 Likewise, in France, themayor of a small town, Morsang-sur-Orge, used hisadministrative authority to declare dwarf tossing illegal.His decision was challenged by dwarves who found thelaw discriminatory – after all, they reasoned, there are noprohibitions on throwing those of normal height. Thecase was appealed, making its way to the highest admin-istrative court in France, the Conseil d’Etat, which foundthat an administrative authority could legally prohibitdwarf tossing on grounds that the activity ‘did not respecthuman dignity and was thus contrary to public order.’The case was also discussed at the United Nations HighCommission on Human Rights, where the judgment ofthe French court was upheld. The commission found thatthe decision was not discriminatory with respect todwarfs. It ruled the ban on dwarf tossing was not abusive,but necessary to protect public order, including consid-erations of human dignity.3

The Florida law was challenged in a lawsuit filed in2001 against then-Governor Jeb Bush and Kim Binkley-Seyer, the head of the Florida Department of Businessand Professional Regulations. David Flood, a TampaBay radio personality known as ‘Dave the Dwarf’,alleged that his constitutional right to equal protectionwas violated by the law that prohibited dwarf tossing.Mr. Flood – whose antics have included being frozen in ablock of ice, being sent to live in a Dumpster for charity,

and being stuffed inside a giant bowling ball – said, ‘Thisis serious, I don’t want the government telling me what Ican or cannot do. They assume [people with dwarfism]don’t have a mind of their own. People confuse exploita-tion with capitalization. If I were 7 feet tall, I’d get paid toput a basketball through a hoop.’4

In legal decisions about dwarf tossing – as in decisionsabout more classical ethics cases – the normative ideasdictate empirical practice (or policy). In the casesdescribed above, the courts began with an abstract con-ception of dignity, which was then used to condemn thepractice. In making their judgment, the courts did notconsult, nor did they commission, empirical investiga-tions of the meaning of dignity in the context of dwarftossing. This may be an efficient way to make moraldecisions but for several reasons it is ethically problem-atic: 1) it is not clear which norms should be called uponto render a decision, 2) the use of norms absent empiricalevidence creates the risk of losing touch with the ‘livedmorality’ or effective moral attitudes of a society, animportant foundation of bioethics, and 3) contemporarysocieties have no shared normative framework thatpermits an uncontested solution to the dwarf tossingdilemma.

Writing in the American weekly, The New Republic,Steven Pinker, professor of psychology at HarvardUniversity, decries evidence-free assertions of norma-tive principles.5 Pinker is particularly concerned aboutthe use of dignity as an a priori norm for makingethical judgments. Until we have evidence, Pinker argues,we do not know how dignity operates. He uses thecase of dwarf-tossing, among others, to illustrate hispoint.

Could there be cases in which a voluntary relinquishingof dignity leads to callousness in onlookers and harmto third parties – what economists call negative exter-nalities? In theory, yes. Perhaps if people allowed theircorpses to be publicly desecrated, it would encourageviolence against the bodies of the living. Perhaps thesport of dwarf-tossing encourages people to mistreatall dwarves. Perhaps violent pornography encouragesviolence against women. But, for such hypotheses tojustify restrictive laws, they need empirical support.

Can the content of dignity and the normative con-sequences then be determined by empirical researchalone? The endorsement of the use of empirical data to

2 In early 2008, plans for a dwarf-tossing contest in a New York barhad to be scrapped because of this law. See: http://www.upi.com/NewsTrack/Quirks/2008/02/27/anti-dwarf-tossing_law_affects_bars_plans/9142/ [accessed 16 April 2008].3 http://en.wikipedia.org/wiki/Dwarf_tossing [accessed 16 April 2008].

4 http://www.sptimes.com/News/112901/Hillsborough/Small_man_takes_big_s.shtml [accessed 16 April 2008].5 S. Pinker. 2008. The Stupidity of Dignity: Conservative Bioethics’Latest, Most Dangerous Ploy. The New Republic. 28 May.

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determine the appropriate normative response might helpavoiding theoretical paternalism, but it is also problem-atic. Empiricists claim that one can easily determinewhether dwarf tossing is morally wrong or right byinterviewing dwarfs and/or a representative sample ofmembers of that society. The opinion of the majorityexpresses the collective conception of the good life, and ifdwarf tossing plays a major role in that, it should bepermitted. Not so fast, says the normative ethicist: haveyou forgotten the problems of slavery and the publiclysanctioned immorality of the Nazi regime?

How must one proceed, then, when neither normativeethics nor empirical research can help us to determinewhether human dignity is really threatened by dwarftossing? Would the solution to this problem be an inte-gration of these two ways of defining and resolving moralproblems? Let us begin with a brief history of effortsto integrate empirical and the normative methods inbioethics.

2. THE RECENT INTEREST INEMPIRICAL ETHICS

Over the past two decades there has been increasing inter-est in, and funding for, empirical research on bioethicalquestions: sociologists, anthropologists, epidemiologists,and psychologists now join philosophers and theologiansin the study of ethical issues.6 In fact, this area of researchis so new that those who do this work are not quite surewhat to name it. The data-driven investigation of prob-lems in bioethics has been variously called: social sciencesperspectives on bioethics,7 empirical research in bioeth-ics,8 empirical-ethical research9 and ethics-related empiri-cal research.10

Empirical bioethicists use qualitative, quantitative ormixed methods to gather data relevant to judgmentsconcerning moral matters in medicine and medicalscience. Not surprisingly, empirically oriented bioethi-

cists approach ethical issues differently from normativebioethicists: empirical research attempts to describe thesocial world as it is, while normative research seeks todescribe how the world ought to be. This difference hascreated a significant gap – and some tensions – betweenempirical and normative approaches to bioethics.11 As arelative newcomer to bioethics, empirical ethics is oftenseen as ancillary to the ‘real’ work of the field. Empiricalresearch provides ‘just the facts’,12 while normative ethicsdoes the difficult and important work of resolving valuequestions by defining concepts, building valid arguments,and reaching practical conclusions. In this vision of bio-ethics, empirical research deserves only a marginal posi-tion: moral justification occurs by the rational anddeductive application of norms, theories, and principles,not by the description of social worlds.

Recent initiatives, however, have urged bioethics andsocial sciences to go beyond the false separation (not:distinction) between facts and values and to reflect uponthe necessary relationship between empirical and norma-tive approaches.13 The best evidence of this new effort tointegrate the empirical and the normative in bioethicsis offered by a number of international and nationalresearch projects funded over the past decade:

• Søren Holm14 coordinated the project ‘EmpiricalMethods in Bioethics’ (2000–2003), funded by theEuropean Union Quality of Life and Management ofLiving Resources research program.

• In Finland, Tuija Takala15 directed a project on theidentity of bioethics and the place of empiricalapproaches in the discipline (2002–2004) funded byEmil Aaltonen Foundation and Helsingin Sanomain100 Years Foundation.

• In the Netherlands, the National Organization forScientific Research (NWO) funded a multidisciplinaryand multi-university project – ‘Ethiek en Beleid’(Ethics and Policy) – examining a number of ethicalissues using both empirical and normative perspec-tives (1995–2004).

6 T. Hope. Empirical Medical Ethics. J Med Ethics 1999; 25(3): 219–220; P. Borry, P. Schotsmans, K. Dierickx. What is the Contribution ofEmpirical Research in Bioethics? An Ethical Analysis. Med Health CarePhilos 2004;7(1): 41–53.7 G. Weisz. 1990. Introduction. In Social science perspectives on

medical ethics. G. Weisz, ed. Dordrecht: Kluwer: 3–15.8 J. Sugarman. The Future of Empirical Research in Bioethics. J Law

Med Ethics 2004; 32(2): 226–231.9 L. van der Scheer et al. 2003. Theory and Methodology of Empirical-

ethical Research. In Engaging the world: The use of empirical research inbioethics and the regulation of biotechnology. S. Holm & M. Jonas, eds.The Netherlands: IOS Press: 89–98.10 F.G. Miller. Ethical Significance of Ethics-Related EmpiricalResearch. J Natl Cancer Inst 2002; 94(24): 1821–1822.

11 R. De Vries & J. Subedi. 1998. Preface. In Bioethics and society.Constructing the ethical enterprise. R. De Vries & J. Subedi, eds. NewJersey: Prentice Hall:.xi–xix.12 J. Lindemann Nelson. Moral Teachings from Unexpected Quarters.Lesson for Bioethics from the Social Sciences and Managed Care.Hastings Cent Rep 2000; 28(1): 12–17.13 E. Haimes. What Can the Social Sciences Contribute to the Studyof Ethics? Theoretical, Empirical and Substantive Considerations.Bioethics 2002; 16(2): 89–113.14 S. Holm & M. Jonas. 2004. Engaging the World. The Use of Empiri-cal Research in Bioethics and the Regulation of Biotechnology. Amster-dam: IOS Press.15 M. Häyry & T. Takala. 2003. Scratching the surface of bioethics.Amsterdam: Rodopi.

228 Carlo Leget, Pascal Borry and Raymond de Vries


• In Belgium, the National Fund for Scientific ResearchFlanders (2002–2003) sponsored a project on the rela-tion between empirical and normative approaches inbioethics.

• In 2001, The Regional Program on Bioethics of theDivision of Health and Human Development of thePan American Health Organization / World HealthOrganization (PAHO/WHO), organized a conferenceand publication on the theme ‘Interfaces between bio-ethics and the empirical social sciences’.16

• In the United States, the Greenwall Foundationfunded a project, ‘The scope of Empirical Researchin Bioethics’ at the Duke University MedicalCenter.

As a result of these projects and other, individual ini-tiatives, (bio-)ethicists, academic nurses, physicians, eth-nographers, social scientists, economists, philosophersand theologians have been searching for better ways tointegrate the empirical and the normative in bioethics.Others, however, have rightly pointed to the limits ofempirical approaches to ethics. Based on Foucauldianideas, Richard Ashcroft has argued that the collectionof qualitative and quantitative social research evidenceplays its part in the construction of social order and leadsto paradoxes that concern the freedom of the ethicalsubject and the definition of the public that isresearched.17 Maya Goldenberg has shown how theempirical turn in bioethics runs the risk of obscuringnormative content by seemingly neutral technicalmeasure: the ‘evidence’ being proposed to adjudicatebetween competing claims.18

The interest in empirical research on bioethical ques-tions has yet to reveal a definitive method for combiningthe empirical and the normative, but it has yielded anumber of different approaches to the integration ofempirical and normative bioethics. Review of theseapproaches allows us to assess the value of differentmethods of empirical/normative integration (ENI) and toexamine whether ENI offers new and useful ways toresolve moral problems, among which is the ethics ofdwarf tossing.

3. HOW BETTER TO INTEGRATE THEEMPIRICAL AND THE NORMATIVE?

Both sociologists and ethicists have analysed the relationbetween the empirical and the normative in bioethics.Departing from the discipline of sociology, De Vries19

developed a continuum that describes empirical workin bioethics. There are four stops on this continuum,stretching from empirical studies that do bioethical workto research that does sociological work:

1. Descriptive ethics: studies that describe popularattitudes about ethically-fraught issues; this can becalled sociology in bioethics – where social scienceskills and methods are used to answer the questionsposed by bioethicists;

2. The consequences of moral advice-giving: the evalua-tion wing of empirical ethics, studies that measure theeffects of bioethical policies;

3. The context of moral advice-giving: refusing toacknowledge a bright line separating facts andvalues, research of this type examines the ‘implicitnormativity’ of clinical facts and medicaltechnologies;20

4. The context of bioethics: studies that regard bioethicsas an interesting arena for sociological study: nothingless, nothing more; a sociology of bioethics – wherethese same skills and methods are used to answersociological questions about bioethics.

The typology developed by De Vries is descriptive; itdoes not explore the ways the empirical and normativemight work together. A second typology, developed byMolewijk21 et al. and departing from the discipline ofethics, focuses on five different methods for integratingempirical research and normative ethics: prescriptiveapplied ethics, theoretical ethics, critical applied ethics,particularist ethics and integrated empirical ethics.Review of their continuum suggests ways of bringing theempirical and normative together, allowing us to considerhow each model might be used to resolve the ethicaldilemma of dwarf-tossing.

The first position is prescriptive applied ethics. Thosewho hold this position are interested in moral practicesbut consider moral theory to be the final arbiter. The fit

16 F. Lolas & L. Agar. 2002. Interfaces between bioethics and the empiri-cal social sciences. Chile: Regional Program on Bioethics OPS/OMS.17 R.E. Ashcroft. Constructing Empirical Bioethics: FoucauldianReflections on the Empirical Turn in Bioethics Research. Health CareAnal 2003; 11: 3–1318 M.J. Goldenberg. Evidence-Based Ethics? On Evidence-Based Prac-tice and the ‘Empirical Turn’ from Normative Bioethics. BMC MedicalEthics 2005; 6: 11. Available at: http://www.biomedcentral.com/1472-6939/6/11.

19 R. De Vries. How can we help? From ‘Sociology In’ to ‘Sociology Of’Bioethics. J Law Med Ethics. 2004; 32 (2): 279–292.20 A. Molewijk et al. Implicit Normativity in Evidence-Based Medicine:a Plea for Integrated Empirical Ethics Research. Health Care Anal 2003;11 (1): 69–92.21 A. Molewijk et al. Empirical Data and Moral Theory. A Plea forIntegrated Empirical Ethics. Med Health Care Philos 2004; 7 (1): 55–69.



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between moral theory and a given social practice is notrelevant for deciding what is right or wrong. Empiricaldata have no bearing on moral theory: data are usefulonly as a measure of the extent to which people arebehaving properly. Applied to dwarf tossing, thisapproach would call for a normative viewpoint basedon philosophical theories (about, for example, humandignity and equality). Supporters of dwarf tossing mayargue that it is an ‘ancient tradition’ and even, perhaps,that it is an important element for the functioning ofsociety. An advocate of this position would respond thatthose empirical facts may be true, but they are also true ofthe immoral practice of human slavery. From a norma-tive perspective the decisive question is whether thepractice is an affront to human dignity – and definitionsof human dignity are based on philosophy (in particularthe work of Kant) rather than interviews with dwarftossers or dwarves. This approach, in fact, does nothingto integrate the empirical and the normative; furthermoreit suffers from the problem of paternalism, giving outsid-ers authority to determine what is morally wrong andright in the practice of a given culture.

The second position is occupied by ethicists character-ized as theorists.22 Like prescriptive applied ethics, theo-rists begin with moral theory, but unlike advocates ofthe first position, they allow theory to be improved by datafrom empirical research. The relationship between empiri-cal data and normative theories is instrumental and one-way. Empirical data can help refine moral theory, butonly to a certain extent. Theorists are more interested inthe perfection of their theory than in the practices thatrequire moral judgment. Dwarf tossing is interesting totheorists because it can serve as a test case to help themrethink the theory of human dignity. For example, seriousconsideration of dwarf tossing can: 1) clarify the relationbetween dignity and social practices, 2) promote reflectionon the question of whether the dignity is an attribute ofhuman beings and practices, and 3) challenge the notionthat self respect is a sufficient guarantee for humandignity. But data from the study of dwarf tossing will notlead to the abandonment of the moral theories based onhuman dignity – theorists open the door to empiricalresearch but they are not interested in a thorough-goingintegration of data and normative theory.

The third position described by Molewijk and his col-leagues is critical applied ethics.23 This position allows fora two-way relation between empirical data and normativetheories: a social practice can and should be judged bothby the gathering of empirical data and by the normative

ethics. Both methods of looking at a social practice areopen to readjustment and refinement and each canperform this role for the other. For critical applied ethi-cists dwarf tossing might begin as a challenge to theirtheoretical account of intrinsic human dignity. Empiricalstudy of the practice – involving interviews with variousgroups of little people (tossed and untossed), peoplewho find dwarf tossing agreeable, and other members ofsociety – will yield important data vital to the testing ofmoral theory. Researchers may discover that many littlepeople experience the practice as confirming their dignity– allowing them to use an otherwise stigmatized identityin a positive way. In turn, this discovery will call for amodification of the original concept of intrinsic dignityin order to allow for ‘extrinsic’ or socially-attributeddignity: dignity that is defined by the way people aretreated by others (a reality open to empirical research)instead of being attributed from a theoretical framework(e.g. a specific concept of human nature) that cannot besubject to empirical research. This new concept of dignitywill generate new research questions about the relationbetween bodies and social dignity, leading to useful com-parisons with body builders, top models and Sumo wres-tlers. Comparing studies might help gain more insightinto how bodies that are not considered as normal by amajority of the population might be both a source ofdignity and a source of humiliation, dependent on avariety cultural factors that need to be clarified beforeone can come to a normative conclusion.

Critical applied ethics also leaves room for normativeethics. The central term ‘dignity’ in empirical researchasks for conceptual clarification and insight on howdifferent concepts of dignity are related to different nor-mative ethical theories, one of which will eventually beguiding in the ethical position developed. Unlike theprevious approaches, critical applied ethics represents aserious attempt to integrate empirical data and normativetheory in a way that is useful for making ethical judg-ments. While precise determination of the ways researchand normative theory interact have yet to be specified,this position holds much promise. We will come back tothis position later in our paper.

The fourth position on the continuum is held by theparticularists. Like the descriptive ethicists described byDe Vries,24 these researchers are interested only in theempirical study of behaviour; they are not interested inrelating their data to ethical theory. Particularists viewmorality as intrinsically related to the particular situationof a practice. Their work begins and ends with the pro-vision of a solid empirical description of the reality. In the

22 Ibid.23 Ibid. 24 R. De Vries, op. cit. note 19.



case of dwarf tossing, particularists will do empiricalresearch to gain insight into the lived morality of thispractice; but they will offer no judgment beyond thecontext of the actual practice they described. They maydiscover that dwarf tossing is considered a morallyacceptable convention in the south of France but thisobservation will not, and indeed cannot, speak to themorality of the practice in Amsterdam or Ann Arbor. Atthe opposite of the first position – prescriptive appliedethics – particularists give so much weight to socialcontext that moral theory no longer performs a criticalrole. General acceptance of a practice by a communitysuffices as ethical justification of that practice. Thehistory of slavery and the suppression of women hastaught us, however, that morally unacceptable practicescan become internalized by the victims of that practice –pointing to the necessity of the external and critical inputthat ethical theory provides.

The fifth position described by Molewijk and his col-leagues is their preferred position. Labelled integratedempirical ethics (IEE),25 this is the approach De Vries26

called ‘the context of moral advice giving’: it is an inten-sified version of critical applied ethics, an ongoing dia-logue between descriptive social scientists and ethicists inwhich the distinction between fact and value eventuallydisappears. As Molewijk et al. rightly point out, factsalways contain and generate values, and values are basedon facts.27 In their view this sociological truth demands atheoretical hybridization of the normative and empiricaldisciplines where the cores of the two disciplines arecombined to form a new field of research.

Although we agree with the idea of the mutualco-determination of facts and values, we think that theposition of IEE continuously runs into a contradiction.On the one hand it stresses that fact and value cannot bedistinguished, and that the empirical and the ethicalshould form a new hybrid. In order to explain what thishybrid is like, however, it cannot but fall back on thedistinction between fact and value. This contradictionhas a far reaching methodological consequence. Forwhen this distinction is blurred, the critical interrelation –the conversation – between the social science and norma-tive ethics is lost. The normative can no longer be criti-cally studied by empirical researchers (cf. the sociologyof ethics of De Vries) and empirical research cannot becritically examined for its normative implications (cf.Ashcroft’s criticism of the construction of a social order).

Thus the position of IEE ends up being both conceptuallycontradictory and methodologically impaired; and wethink it cannot be recommended as the best way to inte-grate the empirical and the normative.

Of the five positions on the Molewijk et al. continuum,we find the third to be the most fruitful for bioethicalwork. Although we are sympathetic with efforts to inte-grate the empirical and the normative into a new hybridwe cannot see how the disappearance of the fact-valuedistinction can help solve ethical problems like the onepresented by the case of dwarf tossing. We must continueto distinguish the normative and the empirical as twoindependent focuses of the ellipse that is called bioethics.In our view this double independency, together with closeinterdisciplinary cooperation, generates the tension thatdrives bioethics. As in a good friendship or marriage,preservation of the partners’ distinct individuality makesfruitful interaction possible.

If we choose the position of critical applied ethics,however, we must answer one important question: howdo both poles of the ellipse influence one another? Inorder to describe this interaction we present our criticalapplied ethics as a five stage process comprising (a) thedetermination of the problem, (b) the description of theproblem, (c) the study of effects and alternatives, (d)normative weighing and (e) the evaluation of the effectsof a decision. In each stage, we explore the perspectivefrom both the empirical and the ethical poles. In our viewone pole is not subservient to the other. Both help to havea double (and mutually clarifying) critical look to themoral issue at stake.

4. CRITICAL APPLIED ETHICSREVISITED: OUR FIVE STAGE POSITION

a. The determination of the problem

The importance of a mutual critical relation between nor-mative ethics and empirical research is already clear fromthe very first question in bioethics: the question as towhat counts as a moral problem? To identify somethingas a moral problem is to invoke conflicting moral valuesby which a practice or an act is measured. But whoinvokes moral values and in what terms are they framed?From the point of view of ethics, norms or ethical con-cepts (like dignity or autonomy) can sometimes performthe critical function of bringing to moral problems asensitivity that is not felt by the majority of society’smembers. In other situations they may help to give voiceto moral intuitions that are felt by a group in society thatis not able to articulate or defend their case. Moral theory

25 A. Molewijk et al., op. cit. note 21.26 R. De Vries, op. cit. note 19.27 We will come back to this later more explicitly as we deal with thesecond step of our own five stage model, called ‘the description of theproblem’.



can inspire a fresh outlook on the morality of a societywhen it is able to offer a new perspective on practices thatare, or may be, ethically problematic.

Seen from the side of empirical science, empiricalresearch, whether done using qualitative or quantitativemethods, contributes to the identification of ethical issuesand to the accurate description of the processes used fordealing with these issues. In short, empirical researchpinpoints the areas where normative analysis is mostneeded, acting as guide to bioethicists who may beinclined to focus on more esoteric problems and ethicalpuzzles that are interesting to them.28 Empirical researchcan also make a critical contribution to theoretical ethicsby showing how ethical norms are embedded in cultureand by revealing the ways society can conceal ethicallyquestionable practices. For its part, moral theory canhelp empirical science discover implicit and otherwiseinvisible moral values present in their work.

Where this five-stage process begins, either in norma-tive ethics or empirical research, is not an important ques-tion in our model. Important is that the identification ofmoral problems by normative ethics is critically followedby empirical research and vice versa. In this way neitherempirical research nor normative ethics are subservient tothe other. Both are equally important in co-determiningthe process without either approach being blurred orfused. Indeed, in each of the five stages of the process ofour critical applied ethics, the ellipse has a double centreproducing a fruitful tension. Because of this tension, allconclusions are provisional.

b. The description of the problem

The description of a moral problem begins, but does notend, with its identification. The categories used in thediscovery of a moral problem import values into theanalysis of the problem; those values determine concep-tions of the who, what, where, when, and how of thepractice under analysis. Theoretical ethicists start theirdescription of the problem with a critical look at thevocabulary used. Words like ‘murder’, ‘steal’, ‘deceive’imply normative content. The critical hermeneutic func-tion of theoretical ethics calls attention to way one’s viewof a practice is partial or limited because of one’s socialsituation or experience in life.

The role of the social sciences in the description of theproblem is more extensive. A good description of anethical problem – one that does not unwittingly and pre-maturely head toward a normative evaluation – requires

careful and disinterested study of what is actually goingon. Social scientists have the skills to discover the motivesthat drive people’s actions, underlying intentions, thenature of moral deliberation, how relevant actors experi-ence a practice, and the impact of the place and timewhere practices take place. It is duty of theoretical ethicsto make sure that researchers remain disinterested, point-ing out when evaluative content enters their empiricaldescriptions: ‘Empirical research often is able to cross-check, verify or ‘fine tune’ the applicability of theoreticanalysis, guidelines and policies in real world practice.Theoretical research not only identifies values choices inclinical practice and informs empirical researchers ofethical issues, it sets forth rigorous analyses to guide clini-cal practice involving ethical concerns.’29

Apart from helping with the description of the moralproblem, social sciences can also perform a critical func-tion by situating both ethical concepts and ethical prob-lems in their broad social context.30 Bioethicists have thehabit of using a variety of cognitive techniques to createdistance between an ethical dilemma and its setting. Thisserves to reduce the complexity and ambiguity of a moralproblem and its limits the number and type of morallyrelevant factors to be juggled, but it also diminishes thevalue of moral advice.31 Normativity is always and every-where socially situated: ‘The decision to become ethical isnot made in a vacuum: Ideas about right and wrong,proper and improper, are shaped by social context.’32

Interesting studies have shown that governing ethicalconcepts as informed consent that are embedded in lawand bioethics do not function in clinical practice.33

Research has shown that people have problems with pro-cessing information about risks and correct estimation ofpotential benefits, and that these problems may lead todistortions in the assessment of risks when makingchoices.34 In normative bioethics, the criterion of

28 B.A. Brody. Assessing Empirical Research in Bioethics. Theor Med1993; 14 (3): 211–219.

29 R. Pearlman, S. Miles, R. Arnold. Contributions of EmpiricalResearch to Medical Ethics. Theor Med 1993; 14: 197–210.30 R.C. Fox & R. De Vries. 1998. Afterword: The Sociology ofBioethics. In Bioethics and society. Constructing the ethical enterprise. R.De Vries & J. Subedi J, eds. New Jersey: Prentice Hall, 270–276; T.F.Ackerman. What Bioethics Should Be. J Med Phil 1980; 5(3): 260–275.31 R.C. Fox & J.P. Swazey. Medical Morality is not Bioethics – MedicalEthics in China and the United States. Perspect Biol Med 1984; 35:336–360.32 R. De Vries. op. cit. note 11.33 O. Corrigan. Empty Ethics: the Problem with Informed Consent.Sociol Health Ill 2003; 25 (7): 768–79234 A. Conti, P. Delbon, A. Sirignano. Informed Consent When TakingGenetic Decisions. Med Law 2004; 23(2): 337–353; A. Hamvas et al.Informed Consent for Genetic Research. Arch Pediatr Adolesc Med2004; 158 (6): 551–555; S. Grover. The Psychological Dimension ofInformed Consent: Dissonance Processes in Genetic Testing. J Genet



informed consent has been developed as a cornerstonein healthcare delivery and human experimentation.Informed consent is the process by which a fully informedpatient can participate in choices about his healthcare. Itoriginates from the principle of respect for persons, theright of the patient to direct what happens to his or herbody, and the ethical duty of the physician to involvethe patient in healthcare decisions. Empirical research,however, has shown repeatedly that the conditions forinformed consent are often not met and are sometimesdifficult to fulfill in practice. According to Musschenga,35

this raises the question whether the doctrine of informedconsent has to be rejected because of the limits ofpatients’ actual capacity to understand information andassess risks.

c. Effects and alternatives

The effects (intended or not, foreseen or not) of, andpossible alternatives to actions are morally relevant.Empirical research can provide an overview of the con-sequences of a decision or policy. Brody points out that‘even if one is not a consequentialist, one can at leastagree that consequences are morally relevant and are partof the basis for evaluating policies. In this way, then,discoveries about what is the case are relevant for decid-ing what ought to be the case.’36 He continues: ‘Moreover,[empirical research] can contribute to that normativeanalysis by discovering relevant consequences whichbecome the consequentialist component of that norma-tive analysis.’37

Empirical research can also test important aspects ofnormative arguments. Perhaps the best example of this isthe idea of a ‘slippery slope’. Researchers can test whenand where ‘slippery slopes’ actually occur (and when andwhere they do not) and they can explore the factors thatencourage and discourage the creation of these danger-

ous and slippery slopes. Further, empirical studies canidentify possible alternative solutions to moral problems.In many cases, the best route to the resolution of anethical dilemma is to make an inventory of possible solu-tions: researchers can help with this task by interviewingexperts in a field – who know both the possibilities andthe limits of the practice in question – or by soliciting theopinions of non-experts, who can offer a fresh look andcreative thinking about an ethical problem.

But there is a limit to the role of empirical data.Empirical data about consequences of actions are espe-cially helpful for those who favour a consequentialistethics. As Brody notes: ‘When the moral issues are fun-damentally non-consequentialist, empirical data willlargely be irrelevant and may even confuse the discus-sion by drawing attention to the wrong issues.’38 Here isthe place for theoretical ethics, pointing to the fact thatdeontological approaches are sometimes a help. Notonly can normative ethicists offer a critical appraisal ofthe causal relations assumed in the description of thecase, they can also point to the disjunction betweenmoralities supported by data and those supported by(deontological) ethical theory. For example, an empiri-cist may claim that capital punishment (the deathpenalty) is morally indefensible because, empirically, itdoes nothing to deter crime, provoke remorse, or savethe state money. But to someone whose moral evalua-tion of capital punishment is based on the notion thatlife is so precious that those who unjustly take a life mustforfeit their own life, data about deterrence and costs areirrelevant.

d. The normative weighing

With the phase of normative weighing we enter the veryheart of normative ethics. But here too we see criticalreciprocity between the empirical and the normative. Themost important contribution of theoretical ethics is tomake sure that the normative power of the factual is putin its proper place. When a practice is described andanalysed and is discovered to be widespread and judgedas moral by a majority of the members of a society,statistical normativity begins to work. Normative theorystands over and against the simple idea that the majoritycreates the moral rules: in the end ethical theory (empiri-cally informed) renders moral judgment.

But empirical research also has a role to play. By criti-cally examining the ethical theories brought into play,empirical research can bring to light the values present inthe wielding of moral ideas. The choice for liberalism, for

Couns 2003; 12(5): 389–403; G. Geller et al. Informed Consent forEnrolling Minors in Genetic Susceptibility Research: a QualitativeStudy of At-Risk Children’s and Parents’ Views about Children’s Rolein Decision-making. J Adolesc Health 2003; 32 (4): 260–271; B.A. Bern-hardt et al. Parents’ and Children’s Attitudes Toward the Enrollment ofMinors in Genetic Susceptibility Research: Implications for InformedConsent. Am J Med Genet 2003; 116A (4): 315–323; G.M. Jacobson,P.M. Veach, B.S. LeRoy. A Survey of Genetic Counselors’ Use ofInformed Consent Documents for Prenatal Genetic CounselingSessions. J Genet Couns 2001; 1: 3–24.35 A.W. Musschenga. 1999. Empirical Science and Ethical Theory: TheCase of Informed Consent. In Reasoning in ethics and law. The role oftheory, principles and facts. A.W. Musschenga, W.J. van der Steen, eds.Aldershot: Avebury; 183–205.36 Brody, op. cit. note 28.37 Ibid. 38 Ibid.



example, can be very much in tune with the position ofthe well-to-do upper middle class bioethicist. And thelack of actual experience in a certain area – e.g. the prac-tice of dwarf tossing – or the simple fact that one’s friendsor relatives are directly affected by the outcome of amoral decision, can be of great importance to the processor moral deliberation. In this way the social scientificexamination and analysis of bioethics (e.g. bioethics com-mittees, research ethics committees, ethical decisionmaking, allocation choices) by non-bioethicists will fosterthe critical self-reflection necessary for the intellectualdevelopment of the field.39

Since our critical applied ethics is a model in whichtheoretical ethics and empirical research provide us witha double (and mutually clarifying) critical look to themoral issue at stake, the normative weighing is precededby three stages in which already normative judgmentshave been made. From the very moment a problem hasbeen identified and described, a normative position hasbeen taken or, rather, the implicit normativity of theidentification and description has been brought to light.By doing this the researchers already take a normativeposition themselves, even when their position is one ofnon-judgmental clarification. In this phase of normativeweighing, again, there is no handmaiden role for eitherempirical research or normative ethics. By clarifyingone’s own moral position, a transparency is achieved onboth the normative ethical theory that is chosen and thesocial position and motives of the researchers involved.Thus, even in its most normative phase our model ofcritical applied ethics honours both poles of the ellipse,achieving choice and critical clarification of this choiceat one.

e. The evaluation of the effects of a decision

Bioethics is a never-ending process of evaluation andre-evaluation. Once a decision has been made, it is themoral responsibility of the decision-makers to be surethat the decision has no unforeseen and unintendedeffects or side-effects. The critical function of theoreticalethics here is to make sure that the attention to effectsdoes not, in the end, result in a victory of consequential-ism (if that is not the appropriate moral theory). Empiri-cal researchers must map out the actual effects of adecision and provide data that can foster further ethicalreflection.

5. DWARF TOSSING: EMPIRICAL ANDNORMATIVE ETHICS IN PRACTICE

All of which brings us back to dwarf tossing. The courtsthat were asked to rule on the permissibility of dwarftossing relied on ‘prescriptive applied ethics’, the firstposition described by Molewijk et al.: the decisions of thecourts were based on a theoretical conception of dignity,which led them to ban the practice as demeaning to littlepeople. Empirical evidence played no part in these courtdecisions. How would our five stage version of criticalapplied ethics deal with this case?

The first stage concerns the determination of theproblem. In this case the discussion on dwarf tossing isalready going on: it does not need to be identified from atheoretical point of departure. It could be illuminating,however, to study empirically how and in what contextthe problem was determined as such, and how and whennot. From the perspective of normative ethics a first criti-cal question concerning the concepts would appear toplay a central role in this discussion. Where authorities inour example focus on dignity, for ‘Dave the Dwarf’ con-cepts like autonomy, freedom and equality are at stake.Although referring to the same physical reality, from atheoretical perspective the question can be raised as towhether the two parties identify the same moral problemhere. Empirical research might help to clarify how theidentification of the problem is related to the culture inwhich the authorities and their challengers are embeddedin order to understand the differences in determination.

The second stage, related to the first, concerns thedescription of the problem. Here theoretical ethics willhelp to map out and conceptually clarify the variousmeanings of keywords like dignity, autonomy, equalityand freedom in which the question is framed. Empiricalresearch will be helpful in order to lay bare the experi-ences, motives and intentions of those involved in theconflict. Different groups are involved here: authorities,people throwing dwarfs, little people being thrown,people watching this activity, etc. Empirical researcherscan help finding out how experience shapes the waypeople relate to reality. Have the authorities ever beenpresent or taken part themselves in the ‘ancient art’ ofdwarf tossing? Does it make difference for the moralposition of people whether they judge dwarf tossing froman outside perspective or from a participant perspective?What moves and motivates ‘Dave the Dwarf’ for being soactive in this area? Why is this activity differently appre-ciated in New Zealand, France or the United States? Is ita morally different thing to organize this event in onecountry rather than another? Both poles of the ellipse arerelated here, because in every empirical description and

39 G. Weisz. op. cit. note 7; R. De Vries & P. Conrad. 1998. WhyBioethics Needs Sociology. In Bioethics and society. Constructing theethical enterprise. R. De Vries & J. Subedi, eds. New Jersey: PrenticeHall: 233–257.



analysis the issue of the conceptual and normative clari-fication comes up again.

The third stage concerns the determination of effectsand alternatives. Although the question of alternativesdoes not seem to impose itself immediately, empiricalresearch can help here to map out what consequences thisactivity has. Is it harmful to the people being thrown?Theoretical ethics might help in specifying different typesof harm related to physical, psychological, social or spiri-tual damage. Empirical ethics may help to clarify whatthe impact on the general public is in terms of respect forlittle people in countries where dwarf tossing is anaccepted practice. It may also address the question ofwhether there is a possible danger of a logical or empiricalslippery slope involved here. Normative ethics mightfocus on the limits of the consequentialist approach thatis favoured when in this stage the effects of dwarf tossingare at the centre of research. It might introduce a criticalreflection on whether dwarf tossing might be ethicallyquestionable, e.g. in terms of actions expressing a certainview of life in an undesirable way, even when there are nodirect consequences in terms of harm, or people are will-ingly accepting possible harms.

In the fourth stage a normative weighing takes place.Normative weighing presupposes the preceding stages,and thus here our application of the example begins tobecome more formal. In this stage different routes can betaken. Researchers might choose to map out differentappreciations of dwarf tossing according to differentethical theories, because they want to be of service ofothers who have to develop an ethical point of view. Orresearchers might choose one ethical theory and clarifywhat this means, according to their analysis, for evaluat-ing this practice. But empirical research has also animportant role at this stage. Any ethical position ondwarf tossing can also be read as an expression of acertain way of life including (and excluding) certain expe-riences. The three authors of this article, for example, arewhite middle-class males of average or more than averageheight in their own countries and are not familiar with theactual practice of dwarf tossing and have no particular(consciously aware) motives to promote or reject thispractice beforehand. This shapes the way they addressthis topic and contributes to define a reality that is valueloaded. Being aware of this fact and communicating it in

a transparent way is a methodological and ethical choicethat is at the heart of our critical applied ethics.

Finally, responsibility for one’s impact on the publicdebate requires an evaluation of the effects of a decision.If this article in Bioethics were to promote a great increaseof the tossing of dwarves resulting in a social devaluationof the position of little people – to mention but oneunintended and unforeseen side-effect, this would haveimpact on both our position and the our responsibilitiesas members of society. Although theoretical ethics will becritical in challenging the consequentialist nature of ourevaluations, empirical research is also required in order toclarify the effects of our article, including whether a slip-pery slope is present and to what degree we can be heldresponsible for that slipperiness. In this way new moralproblems arise and the whole five-stage process beginsagain with the determination and description of what is atstake ethically.

The critical applied ethics approach is the only oneamong the five positions identified by Molewijk et al. thatallows this necessary dialogue between empirical and nor-mative ethics. Our five-step application of this approachallows fruitful and necessary conversation between factsand values, that can help create innovative, practical, anduseful solutions to the moral dilemmas of medicine,medical science, and yes, dwarf-tossing.

Carlo Leget is associate professor of ethics of care at the University ofTilburg, Faculty of Humanities, Department of Religious Studies andTheology (The Netherlands). He has published on the ethics of end-of-life questions, the art of dying and spirituality in palliative care.

Pascal Borry is a post-doctoral fellow of the Research Fund Belgium.He is affiliated to the Centre for Biomedical Ethics and Law (Faculty ofMedicine) at the KU Leuven (Belgium). He has published on ethical,legal and social aspects of genetics and on the relationship betweenempirical and normative approaches and publication ethics.

Raymond G. de Vries is a member of the Bioethics Program, theDepartment of Obstetrics and Gynecology, and the Department ofMedical Education at the Medical School, University of Michigan. Heis the author of A Pleasing Birth: Midwifery and Maternity Care in theNetherlands (Temple University Press, 2005), and co-editor of TheView from Here: Bioethics and the Social Sciences (Blackwell, 2007).He is at work on a critical social history of bioethics, and is studyingthe regulation of science; international research ethics; informedconsent and the ‘problem’ of therapeutic misconception; and thesocial, ethical, and policy issues associated with non-medically indi-cated surgical birth.

